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VERCRUYSSE MURRAY & CALZONE, P.C.

AVOIDING PROBLEMS IN HIRING: INTERVIEWING, TESTING, STATUTE OF LIMITATIONS AND PERSONNEL FILES

By: Bernice McReynolds Patricia Bordman INTRODUCTION The law today provides guidance on and governs nearly every aspect of the employment relationship, including the hiring process. Employers need to be aware of the legal implications of the decisions they make and the questions they ask during the hiring process. This workshop is designed to familiarize employers with some of the issues that surround the hiring process, paying particular attention to the interview process and the screening of applicants, pre-employment testing, the application process and how employers can limit potential liability, and access to personnel files as it relates to employee and employer rights. It is not intended to be a comprehensive recitation of the law or to address the application of the law in any particular circumstance. Thus, prior to taking action, a company should seek the advice of an attorney regarding its rights and obligations in any particular circumstance. APPROPRIATE INTERVIEW PROTOCOL I. GENERAL CONSIDERATIONS A. Interviewing Don'ts - Prohibited Inquires

Under Title VII of the Civil Rights Act of 1964, as amended (Title VII), 42 U.S.C. § 2000e et seq., and Michigan's Elliott-Larsen Civil Rights Act (ELCRA), MCLA § 37.2101 et seq., an employer may not discriminate against certain protected classes in the hiring process. The Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and Michigan's Persons With Disabilities Civil Rights Act (PDCRA), MCLA § 37.1101 et seq., (formerly called the Michigan Handicappers' Civil Rights Act) prohibits discrimination against disabled employment applicants. The Equal Employment Opportunity Commission (EEOC) and the Michigan Department of Civil Rights (MDCR) issue guidelines that set out what questions an employer may or may not ask during the interview process. Based on the foregoing statutes and guidelines, employers may not ask questions eliciting information regarding an applicant's race, color, national origin, age, sex, disability or genetic information that is unrelated to the individual's ability to perform the duties of a particular job. In addition, an employer may not ask an applicant's maiden name, the birth place of the applicant or the birth place of the 1

VERCRUYSSE MURRAY & CALZONE, P.C. applicant's parents, spouse or other relatives. Inquiries into the applicant's date of birth or religious denomination/affiliation are also prohibited. The employer may not inquire into the applicant's height, weight, familial status or marital status and may not request a photograph as part of the application process. Inquiries about whether the applicant has children, about the ability to reproduce or about birth control are likewise prohibited. B. More Interviewing Don'ts - "Neutral" Inquires

Even seemingly "neutral" inquiries may either unduly impact members of protected groups or result in disclosure of information that reveals an applicant's protected classification. For these reasons, the risk in making such inquiries likely outweighs their practical usefulness. Moreover, some neutral inquiries have been determined to be contrary to law. Examples include "neutral" inquiries regarding: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. Arrest records; Dates of school attendance or graduation; Description of any accommodations needed in order to perform the job being sought; Relationship to a person employed by the company; General military experience, as opposed to experience in the U.S. military or a state's militia; Club or association activities; Child care arrangements or pregnancy status; The names of an applicant's spouse or children; Availability to work on weekends or holidays; Garnishment record; Prior workers' compensation claims; and English fluency.

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VERCRUYSSE MURRAY & CALZONE, P.C. C. Interviewing Do's

Although the law places significant restrictions on inquiries that can be made during the application and interview process, these restrictions rarely impact questions designed to elicit relevant information about an applicant's work-related abilities, educational background and employment experience. 1. 2. Applicants should be asked the reason why they left previous jobs. Although general inquiries about arrests are prohibited, applicants may be asked if they have ever been convicted of a felony or if they are subject to any pending felony charges. Applicants can be asked: "Are you 18 years old or older?" Applicants can be asked: "If hired, can you provide the documents required by law to prove that you are legally able to work in the U.S.?" In the event that applicants offer prohibited information (e.g., marital status, age, height, weight, religion, national origin, disability, race), do not record this information on the application form or in any notes taken as part of the application process.

3. 4. 5.

II.

INQUIRIES ABOUT WORKERS' COMPENSATION CLAIMS A. In Michigan, it is a violation of public policy to discharge employees for exercising their legal right to workers' compensation. Goins v. Ford Motor Co., 131 Mich. App. 185 (1983), lv. denied, 424 Mich. 879 (1986). Moreover, the Workers' Disability Compensation Act (WDCA) expressly prohibits discrimination or retaliation against individuals for exercising their legal rights to assert a workers' compensation claim. Accordingly, employers should not question applicants about prior workers' compensation claims in either job applications or an interviews. 1. If the employer obtains information about an applicant's prior workers' compensation claims, the argument will almost certainly be made that such information serves to weed out people who previously filed workers' compensation claims which violates the workers' compensation law's anti-retaliation provision and Michigan public policy.

B.

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VERCRUYSSE MURRAY & CALZONE, P.C. 2. An inquiry about an applicant's previous workers' compensation history may also be challenged as a back door approach to uncovering a physical impairment of the applicant, thereby supporting a claim of disability discrimination. The EEOC's final rules interpreting the ADA clarify that employers may not ask questions about a job applicant's workers' compensation history before a job offer is made. According to the EEOC, such inquiries relate directly to the severity of a job applicant's impairments and are therefore likely to elicit information about disability. C. A potential tension exists between Michigan's PDCRA and the employer's right to have people certified as vocationally handicapped pursuant to §§ 905 and 921 of the WDCA, MCLA § 418.905, 418.921. · WDCA, § 921 limits the period of employer liability to 52 weeks for the death or disability of a certified vocationally disabled person arising out and in the course of that individual's employment. WDCA, § 905 sets forth the procedure an individual must follow to become certified as vocationally disabled. Significantly, the individual applying for certification must be unemployed by the relevant employer at the time certification is sought.

·

In Hebert v. Aetna Industries, Inc., 182 Mich. App. 139 (1989), the Court rejected the plaintiff's claim that the employer committed discrimination per se when it required the plaintiff to apply for certification from the Division of Vocational Rehabilitation. Section 921 of the WDCA was designed to encourage employers to hire disabled individuals by limiting an employer's liability for work-related injuries of persons who have been certified as vocationally disabled. The Court therefore held that under the circumstances before it, the employer's request that an individual apply for certification under § 905 did not indicate a refusal to hire or limit prospects for employment if certification was not obtained. According to the Court of Appeals in Hebert, "[t]he trial court properly found that there was a question of fact as to whether defendant failed to hire plaintiff because of a handicap, because the issue of whether plaintiff returned to defendant's office with the completed forms was in dispute. Further, a request that an individual apply for the certification does not, per se, show that defendant would refuse to hire plaintiff, or limit his prospect of employment, if he could not get certified." The court did not address whether the employer would have violated the disability discrimination laws if the employer had actually refused to hire the plaintiff because of a failure to obtain the requested certification. Here, the possibility remained that the employer

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VERCRUYSSE MURRAY & CALZONE, P.C. would have hired the plaintiff even if he had returned to the employer for hire without the certification. D. Employers may submit information about an employee's workers' compensation history gathered as part of a pre-employment medical examination or inquiry to workers' compensation offices in accordance with state workers' compensation laws without violating the provisions of ADA. · See MCLA § 418.911, requiring an employer to submit information, within 60 days after the employment of a certified vocationally disabled person commences, or before an injury compensable under the WDCA occurs, to the Division of Vocational Rehabilitation of the Department of Education, in order to limit liability under § 921 of the WDCA.

E.

In light of Hebert, the Michigan WDCA and the EEOC's final rules regarding the ADA, the most appropriate time to address the issue of certification for workers' compensation purposes is after an offer of employment has been extended.

III.

IMMIGRATION-RELATED HIRING CONCERNS A. The Immigration Reform and Control Act (IRCA) was passed in 1986 and amended in 1990. IRCA prohibits discrimination in hiring based on an individual's national origin or citizenship status. 8 USC § 1324b(a)(1). Illegal aliens are not protected by the Act. The case law establishes that green card and citizen-only policies are prohibited. Indefinite right-to-work policies are also prohibited. An employer cannot refuse to hire an individual solely because work authorization documents will expire at a future date. Do not ask applicants if they are U.S. citizens. However, applicants may be asked if they are authorized to work in the U.S.

B. C. D.

E.

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IV.

HIRING CONSIDERATIONS UNDER THE AMERICANS WITH DISABILITIES ACT A. Under the ADA a disabled individual is defined as one who: · · · B. has a physical or mental impairment that "substantially limits one or more of the major life activities" of such individual, has a record of such an impairment or is regarded (i.e., perceived) as having such an impairment.

A qualified individual with a disability is an individual who: · · 1. 2. satisfies the requisite skill, experience, education and other job-related requirements of the position and with or without reasonable accommodation, can perform the essential functions of such position. Essential functions means the fundamental job duties, but does not include marginal functions of a position. Evidence of whether a particular function is essential includes, but is not limited to: (a) written job descriptions prepared before advertising or interviewing the applicants for the job, (b) the amount of time spent performing the job function, (c) the consequences of not requiring the employee to perform this function, and (d) the work experience of current and past employees in the job. Reasonable accommodation means modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position the qualified applicant desires, modifications to the work environment or modifications or adjustments that enable an incumbent employee with a disability to enjoy equal benefits and privileges of employment.

3.

C.

Undue hardship with respect to the provision of accommodation means significant difficulty or expense incurred by an employer in light of financial resources, the costs involved, and the impact, financially and operationally, on the employer.

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VERCRUYSSE MURRAY & CALZONE, P.C. D. Disqualification for employment may arise if the individual poses a direct threat to the health or safety of other individuals in the workplace that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a "direct threat" is based on an individualized assessment of the individual's present ability to perform the essential functions of a job safely. The assessment is based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include: 1. 2. 3. 4. E. The duration of the risk; The nature and severity of potential harm; The likelihood that the potential harm will occur; and The imminence of the potential harm.

Disability does not include transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments or other sexual behavior disorders. It also does not include compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from current illegal use of drugs. Homosexuality and bisexuality are not impairments and therefore are not defined as disabilities. Permissible areas of inquiry - The EEOC has issued hiring guidelines on that are deemed not to conflict with the requirements of the ADA. See EEOC Enforcement Guidance, October 1995. 1. Examples of questions that are permissible to ask a job applicant include: a. "Can you perform functions of this job (essential and/or marginal) with or without reasonable accommodation?" or "Please describe how you would perform the functions of this job with or without accommodations." i. It is okay to ask an applicant about his/her ability to perform specific job-related functions, e.g., lifting requirements only if the job requires lifting. It is okay to ask generally about attendance records, e.g., "How many days were you absent last year?" It is not okay to ask, "Were you sick?"

F.

ii.

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VERCRUYSSE MURRAY & CALZONE, P.C. iii. It is okay to ask general lifestyle inquiries, such as eating habits, exercise habits if such inquiries pertain to the essential functions of the job. It is not okay to ask this line of questions if it is likely to elicit information about the existence or extent of a disability (e.g., "Do you need to eat a number of small snacks at regular intervals throughout the day in order to maintain your energy level?").

b.

If the applicant requests accommodation for the hiring process, the employer may ask for documentation of the applicant's disability and functional limitations only if the need for accommodation is not obvious. If an individual voluntarily discloses that he or she will need periodic breaks to take medication, the employer may ask about the accommodation requested, such as how often will breaks be needed and how long the breaks must be. The employer may not ask any questions about the applicant's underlying physical condition. Be forewarned: While an employer might lawfully ask some pre-offer questions about the need for reasonable accommodations on the job, if the applicant is not hired, the EEOC will consider the employer's pre-offer questions as evidence that the employer knew about the need for reasonable accommodation and will carefully scrutinize whether that need was a reason for rejecting the applicant.

c.

d.

2.

Impermissible inquiries - according to the EEOC's hiring guidelines issued under the ADA impermissible inquiries during the application process include: a. b. c. d. e. Do you have a disability? Do you have asthma? How many days were you sick last year? What medicine are you currently taking? Have you ever been treated for mental health problems? Have you ever been addicted to drugs? How often did you use illegal drugs?

If an applicant discloses a disability during the interview, the employer should not ask follow-up questions about the disability.

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V.

HIRING CONSIDERATIONS WITH MINORS

Each summer high school students flood the job market seeking employment. In some cases, they seek only temporary summer employment. Others seek employment that they hope will continue through the next school year. To the extent that you employ or plan to employ minors, it is a good time to review your practices to be sure that you are in compliance with Michigan's Youth Employment Standards Act (YESA), MCLA 409.101 et seq. Michigan's regulations on youth employment are detailed and carry criminal sanctions for violations. Before employing any minors seek advice from counsel to be sure that you do not run afoul of YESA. A. Who Is Covered?

YESA generally defines a minor as an individual under age 18. However, the statute does not apply to (a) minors 17 years old and who have passed a general educational development (GED) exam, (b) minors 16 years or older who have completed the requirements for high school graduation or (c) emancipated minors. The employer must obtain and keep on file a certification that a GED exam has been passed, that a minor has completed the requirements for gradation, or emancipation. B. Hazardous Occupations:

Under the YESA, employers may not employ any person under the age of 18 in any occupation determined to be hazardous under Labor Department's regulations. Examples of occupations that have been deemed to be hazardous include: construction, demolition, excavating, roofing, operating certain power-driven machines and vehicles, logging, silica manufacturing, occupations requiring the use of a respirator, meatpacking, and occupations requiring indecent performances. This list is just a small sample of the occupations in which minors are prohibited from working. Employers desiring to employ minors in hazardous occupations may apply for a deviation. C. Minors Between 11 And 14 Years Of Age:

Minors less than 14 years old, and at least 11 years old generally may not be employed. However, they referee or umpire in an athletic program for an age bracket less than their own age if an adult is on the premises and written permission from a parent is granted. A minor 11 years of age or older may be employed as a golf or bridge caddy. A minor 13 years of age or older may be employed in certain farming operations and to perform services in setting traps in trap, skeet and sporting clays shooting events. D. Hours Of Work:

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VERCRUYSSE MURRAY & CALZONE, P.C. Minors may be employed not more than 6 days a week. They also cannot be worked more than an average of 8 hours per day or 48 hours per week, nor for more than 10 hours per day. Also, a minor that is a student, may be subjected to a combined school/work week of no more than 48 hours per week. Minors also cannot be employed during school hours unless they are employed under a work-related educational program. In addition, minors under 16 cannot be employed between the hours of 9:00 p.m. and 7:00 a.m. Minors 16 and over cannot work between the hours of 10:30 p.m. and 6:00 a.m. However, minors who are in school may be employed until 11:30 p.m. on Fridays, Saturdays, vacations or periods when they are not regularly enrolled in school. Different rules apply to minors over 16 employed in farming operations, such as a prohibition against employment between 2:00 a.m. and 5:30 a.m. E. Meals And Rest Periods:

Minors cannot be employed for more than 5 hours working time without being granted a 30 minute meal and rest period. Breaks of less than 30 minutes working time do not count as a rest period. F. Occupations Involving Cash Transactions:

Minors cannot be employed in occupations involving cash transactions after sunset or 8:00 p.m. at a fixed location unless an employee over 18 is also present at that location. G. Postings And Record Keeping:

Employers must post a department of labor notice regarding the employment of minors on its premises. Also, the employer must keep time records regarding the hours worked by minors and must retain those records for at least 1 year. H. Alcoholic Beverages:

Minors may not be employed in any establishment where alcoholic beverages are distilled, rectified, compounded, brewed, manufactured, bottled, sold at retail or consumed. However, if more than 50% of the employer's gross receipts are derived from the sale of food or other goods, a minor 16 or over may be employed in an establishment that sells alcohol at retail or for consumption. Minors 14 and 15 years old may not be employed in an establishment where alcohol is sold for consumption but they may be employed in retail establishments where the sale of food or other goods exceeds 50% of gross receipts. I. Work Permits:

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VERCRUYSSE MURRAY & CALZONE, P.C. Employers are not permitted to employ minors unless it obtains and keeps on file a work permit from the minor's school district. After the minor's employment ends, the work permit must be returned to the school. J. Exemptions:

The YESA does not prohibit employment of a minor 14 years or older if the employer signs an agreement with the school concerning the employment and the agreement is signed and placed on file before the minor begins employment. YESA also does not prohibit a minor from engaging in domestic work or chores at a private residence, selling or distributing newspapers and magazines, shoe shining, services performed by a youth organization, employment in businesses owned and operated by a parent or guardian, certain farm work and employment by a school in which the minor is enrolled. K. Violations:

Most violations of YESA are misdemeanors punishable by up to one year in prison and a fine of up to $500 for each violation. However, employment of minors in occupations involving cash transactions outside of the prescribed hours contain more severe penalties. The first offense is a misdemeanor punishable by up to one year in prison and a fine of up to $2,000. The second offense is a misdemeanor punishable by up to two years in prison and a fine of up to $5,000. The third offense is a felony punishable by up to ten years in prison and a fine of up to $20,000. Police and prosecutors take YESA violations seriously. A May 8, 2001 article details two incidents where employers have been or are expected to be charged criminally for allowing minors alone after regulated hours in pizzerias. In both cases, the police discovered YESA violations when investigating a criminal act perpetrated at the pizzeria. VI. THE SCREENING OF APPLICANTS A. REFERENCES 1. Prospective employers should always check references provided by applicants. Such references are an indispensable source of information and insight regarding job candidates. The value of this important management tool has been strengthened in Michigan by a statute designed to limit a current or former employer's liability for disclosing information about an employee to a prospective employer. a. Michigan's Bullard-Plawecki Employee Right to Know Act, M.C.L.A. § 423.452, provides that upon request, a current or former employer may disclose to a prospective employer information about an employee's job performance.

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An employer must remember, however, that it cannot divulge a disciplinary report, letter of reprimand, or other disciplinary action to a third party without written notice to the employee, unless the employee has specifically waived written notice as part of a written, signed employment application with another employer; or the disclosure is ordered in a legal action or arbitration; or the information is requested by a government agency as a result of a claim or complaint by the employee. M.C.L.A. §423.506. b. The law makes an employer who discloses such information immune from civil liability, provided the information which is disclosed is documented in the individual's personnel file and the disclosure is made in "good faith". The law further provides that an employer who makes such a disclosure is presumed to be acting in good faith, and that to overcome this presumption it must be proven by a preponderance of the evidence that the employer knew the information was disclosed with reckless disregard for the truth or that the disclosure was specifically prohibited by state or federal statute. Employers are cautioned to stick to the issue of an employee's job performance only and not to discuss any protected activity (such as filing a charge of discrimination) in which the employee may have engaged. Michigan courts have held that a negative reference may support a retaliation claim where discrimination complaints, charges or lawsuits are pending. Dalmia v. General Motors, Mich. App. No. 186669 (May 9, 1997, unpublished); Deflaviis, et al v. Lord & Taylor, Inc., 223 Mich. App. 432 (1997).

c.

d.

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VERCRUYSSE MURRAY & CALZONE, P.C. 2. Generally, the standard practice of many labor/employment lawyers is to advise former employers, who have been contacted as references, to say nothing about former employees beyond verifying dates of employment and positions held. a. The reason: concern that an unsuccessful applicant will sue former employers who gave negative references, on grounds of tortious interference with a prospective advantageous business relationship. Despite ambiguity in the language of Title VII, federal law prohibits retaliation against former employees. The United States Supreme Court has held that a discharged employee can pursue a claim that he was given a bad employment reference because he filed an EEOC charge. Robinson v. Shell Oil Co., 117 S. Ct. 843 (1997). Former employers are also concerned that they could be sued for defamation stemming from negative references, even though Michigan law recognizes a qualified privilege for such communications. Murdock v. Higgins, 208 Mich. App. 210, 217 (1994), aff'd, 454 Mich. 46 (1997); Gonyea v. Motor Parts Federal Credit Union, 192 Mich. App. 74, 79 (1991); Moore v. St. Joseph Nursing Home, Inc., 184 Mich. App. 766, 768 (1990); Dalton v. Herbruck Egg Sales Corp., 164 Mich. App. 543, 548 (1987). There is even a suggestion under Michigan law that an applicant could sue a former employer for "self-defamation." Under this theory, where an applicant is forced to tell a prospective employer that he was discharged for an adverse reason, the applicant has thereby been forced by the former employer to defame himself. Grist v. Upjohn Co., 16 Mich. App. 452 (1969). No affirmative duty to inform - Note that it appears that under Michigan law, a former employer is under no obligation to disclose negative information about a former employee in response to an employment inquiry, even where the information would serve to warn the prospective employer about an applicant's dangerous characteristics or tendencies. See Murdock v. Higgins, 454 Mich. 46, 56 (1997) (the "qualified privilege that allows former employers to disclose dangerous actions or violent tendencies of past employees to prospective employers without being subject to claims of libel

b.

c.

d.

e.

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VERCRUYSSE MURRAY & CALZONE, P.C. or slander . . . has not . . . evolved into a affirmative duty to inform on the part of a prior employer.") and Moore v. St. Joseph Nursing Home, Inc., 184 Mich. App. 766 (1990) (former employer held not negligent for failing to disclose former employee's violent propensities to new employer, where employee subsequently attacked and killed a co-worker). See also, the discussion on Negligent Hiring, infra. 3. The Bullard-Plawecki Right to Know Act also specifies that references from former employers may not be included in an employee's personnel record in such a way that the identity of the person supplying the reference would be disclosed. M.C.L.A. §423.501(c)(i). a. This provision would seem to encourage the giving of candid references because by law the identity of the individual giving the reference cannot be disclosed. The Michigan Court of Appeals has held that this protection also applies to references given verbally (e.g. over the phone), and to handwritten summaries of such references. Michigan Professional Employees Soc. v. Department of Natural Resources, 192 Mich. App. 483 (1992). However, in the same case, the Court of Appeals also suggested that an employee might be entitled to summaries of the contents of such references, to the extent that they can be provided without divulging the identities of the references. Id. At 498-99, citing Muskovitz v. Lubbers, 182 Mich. App. 489 (1990), lv. denied, 437 Mich. 895 (1991). The Court of Appeals remanded the case to the trial court for consideration of this question, which remains unresolved.

b.

c.

4.

One way to increase the likelihood of obtaining meaningful references is to ask applicants to sign a release permitting the prospective employer to obtain their entire personnel file, including disciplinary reports, letters of reprimand, or other disciplinary actions. Such a release can be included in the employment application itself. M.C.L.A. §423.506.

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VERCRUYSSE MURRAY & CALZONE, P.C. 5. Other tools employers may want to utilize to learn about the potential employee, but which must be assessed on a case-by-case basis, include: a. b. B. Credit reference checks and/or Motor vehicle record checks.

OVERVIEW OF EMPLOYMENT INQUIRIES UNDER THE FAIR CREDIT REPORTING ACT 1. Amendments To The Fair Credit Reporting Act a. The Fair Credit Reporting Act (FCRA), 15 U.S.C. §16811681(u), as amended by the Consumer Credit Reporting Reform Act of 1996, PL104-208, governs employers wishing to obtain certain information regarding job applicants. The FCRA, which until 1996 covered credit bureaus dealing with reports concerning an individual's credit worthiness, now covers reports on driving records, criminal conviction histories, school records, and other related information, depending on how the information is obtained by the employer. Such information is often of interest to employers when making hiring decisions. The FCRA is designed primarily to protect the privacy of consumer report information and to guarantee that the information supplied by consumer reporting agencies is as accurate as possible. The 1996 amendments significantly increase the legal obligations of employers who use consumer reports. Congress expanded employer responsibilities because of a concern that inaccurate or incomplete consumer reports were causing applicants to be denied jobs or causing employees to be denied promotions unjustly. The amendments ensure that job applicants and employees are: i. ii. 2. Aware that consumer reports may be used for employment purposes and agree to such use, and Notified promptly if any information in a consumer report may result in a negative employment decision.

b.

c.

d.

Consumer Reporting Agencies

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a. b.

The FCRA comes into play when an employer obtains covered information through a "consumer reporting agency". A "consumer reporting agency" is any person or firm which, for monetary fees, dues, or on a cooperative non-profit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facilities of inter-state commerce for the purpose of preparing or furnishing consumer reports. 15 U.S.C. §1681a(f). An employer avoids application of the FCRA when an employer uses internal sources, instead of third parties, to obtain covered information and to conduct investigations. Federal Trade Commission (FTC) staff have issued opinion letters stating that public agencies providing consumer information to employers for employment purposes, and charging a fee for the reports, are not "consumer reporting agencies". Therefore, although a strict interpretation of the term "consumer reporting agency" would include law enforcement agencies, courts and other agencies, the Act does not restrict such public agencies from fulfilling legislatively mandated public policy. See, e.g., Copple Opinion letter, Opinion letter from FTC Commission Staff, June 10, 1998) Employers should consider using third parties to conduct investigations where: i. The employer does not have employees with the experience, training, skills and knowledge necessary to accomplish effective and lawful investigations, or The investigation may be considered biased or lacking in credibility if conducted "in-house." Employers should consider obtaining an indemnity and hold harmless agreement in procuring any contract with a consumer reporting agency. See e.g., Addendum A.

c.

d.

e.

ii. iii.

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VERCRUYSSE MURRAY & CALZONE, P.C. 3. Types Of Reports Covered a. Employers often do background checks before extending offers of employment or promotion. Some employers only want an applicant's or employee's credit payment history; others want driving records and criminal histories. In filling particularly sensitive positions, it is not unusual for employers to order investigative consumer reports that include interviews with an applicant's or employee's friends, neighbors and associates. All of these types of reports are considered consumer reports if they are obtained from a consumer reporting agency. Consumer Reports: A consumer report is any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected, in whole or in part, for the purpose of serving as a factor in establishing the consumer's eligibility for purposes of employment. The term "employment purposes," when used in connection with a consumer report, means a report used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee. c. An investigative Investigative Consumer Reports: consumer report is a consumer report or a portion thereof in which information on a consumer's character, general reputation, personal characteristics, or mode of living is obtained through personal interviews with neighbors, friends, or associates of the consumer or with other with whom the consumer is acquainted or who may have knowledge concerning any such items of information.

b.

4.

The Use Of Consumer Reports For Employment Purposes a. General Reporting Responsibilities i. Disclosure: An employer may procure a consumer report on an employee or applicant only after disclosing to the employee or applicant that a consumer report may be obtained for employment purposes. This disclosure must be clear and conspicuous, must be in writing, and must be contained in a document that

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VERCRUYSSE MURRAY & CALZONE, P.C. consists solely of the disclosure, without any extraneous information. See, e.g., Addendum C and D. ii. Authorization: An employer must obtain written authorization from the employee or applicant, following disclosure and prior to receiving the report. See, e.g., Addendum C and D. The employer's obligation to disclose and obtain authorization can be satisfied as part of a routine procedure at the start of employment. This will relieve the employer of being in the awkward position of having to ask a suspected wrongdoer for permission to allow a third party to provide an investigative or other consumer report to the employer. (Meisinger Opinion letter from FTC Staff, August 31, 1999)

iii.

b.

Additional Procedures Required for Adverse Actions i. If any employer considers taking adverse action either wholly or partly as a result of the information contained in a consumer report, it has additional reporting responsibilities. An adverse action in the employment setting includes a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employment (e.g. adverse hiring, promotion, demotion, reassignment and retention decisions). Step 1: Pre-Adverse Action Disclosure Prior to taking the adverse action, an employer must notify the employee or applicant and give him or her a copy of the report, along with a description in writing of the consumer's rights as prescribed by the FTC. The reporting agency that furnishes the reports should provide a copy of a document detailing the consumer's rights with the report.

ii.

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VERCRUYSSE MURRAY & CALZONE, P.C. The notification (See e.g., Addendum H): · May be by written, oral or electronic means and must include the name, address and telephone number of the consumer reporting agency (including a toll-free number if it is a nationwide consumer reporting agency). Must state that the consumer reporting agency did not make the adverse decision and is not able to explain why the decision was made. Must state the job applicant's or employee's right to obtain free disclosure of the individual's file from the consumer reporting agency if requested within 60 days. Must inform the applicant or employee of the right to dispute, directly with the consumer reporting agency, the accuracy or completeness of any information provided by the agency.

·

·

·

The employer cannot avoid FCRA compliance by not ordering a written report and receiving instead only an oral report. The FTC has stated that employers must actually provide "oral copies" of oral information received from CRAs in order to comply with the pre-adverse action notice requirement of the Act. (Leathers Opinion letter from FTC Staff, September 9, 1998) iii. Step 2: Pre-Adverse Action Waiting Period The Act does not prescribe a set waiting period between notifying the applicant or employee that adverse action is intended and the action actually taking place. FTC attorneys have issued guidance letters suggesting that a 5-day period should elapse. See, e.g. Weisberg Opinion letter from FTC Staff, June 27, 1997)

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VERCRUYSSE MURRAY & CALZONE, P.C. A shorter waiting period may be appropriate under unusual circumstances, such as in cases of sex harassment discipline. See Vail Opinion letter from FTC Staff, April 15, 1999) This waiting period is intended to provide the applicant or employee with time to address any inaccuracies in the report. iv. Step 3: Adverse Action Notice After taking an adverse action, an employer must notify the individually, either orally, in writing, or electronically, that the adverse action has been taken. See, e.g., Addendum I. This notice must include: · the name, address, and phone number of the credit reporting agency that supplied the report (including the toll-free number established by the agency if the agency compiles and maintains files on consumers on a nationwide basis), a statement that the credit reporting agency supplying the report did not make the decision to the adverse action and cannot give specific reasons for it, and a notice of the individual's right to dispute the accuracy or completeness of any information the agency furnished, and his or her right to an additional free consumer report from the agency upon request within 60 days.

·

·

c.

Certification:

Once an employer has received the employee's or applicant's permission to obtain the report, the employer must certify to the consumer reporting agency the permissible purposes for which the report is being obtained and certify that the report will not be used for any other purpose.

20

VERCRUYSSE MURRAY & CALZONE, P.C. d. Reports Must be Used for Employment Purposes i. In Zamora v. Valley Federal Sav. & Loan Ass'n of Grand Junction, 811 F.2d 1368 (10th Cir. 1987), the Court held that the intended and actual use of a credit report on the spouse of an employee being considered for a security-sensitive position in order to evaluate the employee's trustworthiness does not permit the employer to obtain the credit report of the employee's spouse. A consumer loan company's request for a consumer report about a former employee could not be justified for "employment purposes" where the report was not sought until after the employee had announced his resignation. Russell v. Shelter Financial Services, 604 F. Supp. 201 (W.D. Mo. 1984).

ii.

5.

The Use Of Investigative Consumer Reports a. Prior to procuring an investigative consumer report, an employer must clearly and accurately disclose to the applicant or employee that such a report, including information as to her or her character, general reputation, personal characteristics, and mode of living, may be made. In Houghton v. New Jersey Mrfs. Ins. Co., 795 F.2d 1144 (3d Cir. 1986), the Court held that the phrase "available credit files" was not sufficient notification that the report came within the definition of an investigative consumer report. b. The disclosure must be in writing and mailed or otherwise delivered to the individual no later than three days after the date on which the report was first requested. It must include a statement informing the individual of his or right to request additional disclosure of the nature and scope of the investigation and must include a summary of the individual's rights under the FCRA. See, e.g.; Addendum E. Certification: The employer must certify to the consumer reporting agency that such disclosures have been made.

c.

21

VERCRUYSSE MURRAY & CALZONE, P.C. d. Additionally, upon the request of the consumer within a reasonable time period after receipt of the disclosures, an employer must make a complete disclosure of the nature and scope of the investigation that was requested. This must be made in a written statement, mailed or otherwise delivered to the individual no later than five days after the date on which the request was received from the consumer or the report was first requested, whichever is later.

6.

Medical Information

Special provisions were also established for consumer reports containing medical information. The FCRA prohibits a consumer-reporting agency from providing reports that contain medical information to be used for employment purposes without the specific prior consent of the individual who is the subject of the report. In the case of medical information sought for employment purposes, the applicant or employee must explicitly consent to the release of medical information in addition to authorize the obtaining of a general consumer report. 7. Non-Compliance a. The FCRA allows individuals to sue employers in federal court for damages where employers fail to get an applicant's permission before requesting a consumer report or fail to provide pre-adverse action disclosure and adverse action notices to unsuccessful job applicants. Potential damages include court costs and reasonable legal fees. The law also allows individuals to seek punitive damages for deliberate violations. In addition, the Federal Trade Commission may sue employers for noncompliance and obtain civil penalties. Related actions under state law are not preempted. The statute of limitations for pursuing such a claim is two years from the date on which liability arises, except where a defendant has materially and willfully misrepresented any information, then the action may be brought at any time within two years after discovery by the consumer of the misrepresentation. The FCRA also provides that any person who knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses shall be fined and imprisoned for not more than two years, or both.

b.

c.

B.

NEGLIGENT HIRING

22

VERCRUYSSE MURRAY & CALZONE, P.C.

1.

Under the theory of negligent hiring, an employer may be liable for the negligent or intentional tortious conduct of its employees if the employer has breached a duty to use reasonable care in hiring and retaining only competent and safe employees. In essence, the plaintiff's complaint is that he or she would not have been injured had the employer not been negligent in hiring the unsafe or incompetent employee who caused the harm. In other words, employers can be found liable for failing to protect clients, customers, coworkers, or visitors, from injury caused by an employee whom the employer either knew or should have known posed a risk to others. In order to prove a case of negligent hiring, the plaintiff must establish that the employee who caused the injury was unfit for hiring, that the employer's hiring proximately caused the injuries and that the employer knew or should have known of the employee's unfitness for the job. In Southeast Apartments Management, Inc. v. Jackman, 257 Va. 256, 513 S.E.2d 395 (1999), a tenant of an apartment building sued the building's owner for negligent hiring and retention, claiming that building's maintenance supervisor had molested her after entering her apartment one night. The Court noted that there was nothing to put the building owner on notice that hiring the maintenance supervisor might lead to a sexual assault on a tenant: None of the information gathered indicated that he might have "a propensity to molest women;" his recommendations were favorable; and his application did not suggest a problem. Furthermore, the Court found that reasonable care did not require the employer to investigate his criminal record. In Escobar v. Madsen Construction Co., 7 I.E.R. 251 (Ill. App. 1992) lv. denied, 602 N.E.2d 450 (1992), a carpenter shot a fellow worker. The Court ruled that the employer was not responsible for negligent hiring and supervision. The Court determined that the plaintiff had failed to establish that the injuries were foreseeable to a person of ordinary prudence in the employer's position and that negligent hiring must have been a substantial factor in bringing about the harm. The Court paid special attention to the fact that the gun used was not supplied by the employer and that the incident happened off the work site. a. In general, employers have a "duty to exercise reasonable care in view of all the circumstances in hiring individuals who, because of the employment, may pose a threat of injury to members of the public." Ponticas v. K.M.S. Invs., 331 N.W.2d 907, 911 (Minn. 1983).

2.

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VERCRUYSSE MURRAY & CALZONE, P.C.

i.

The standard test is whether "a reasonably prudent and careful person, under the same or similar circumstances, should have anticipated that an injury to the plaintiff or to those in a like situation would probably result" from the employee's conduct. DiCosala v. Kay, 450 A.2d 508 (N.J. 1982). The employer's duty extends to plaintiffs within the zone of foreseeable risks created by the employment. As the seriousness of the risk posed by the employee increases, the threshold of the employer's duty of care likewise goes up.

ii. ii.

b.

The employer must be shown to have had actual or constructive knowledge of the employee's unfitness. i. Actual knowledge of an employee's dangerous propensities can be demonstrated by showing that an employer possessed evidence of those propensities or had actually witnessed them. Constructive knowledge is found when a reasonable investigation would have alerted the employer to the dangerous propensities of the employee.

ii.

c.

In Ray v. County of Delaware, 239 A.D.2d 755, 657 N.Y.S.2d 808, 809 (3rd Dep't. 1997), the plaintiff sued a mental health clinic, alleging negligence in the hiring and subsequent failure to supervise its employee, who engaged in a sexual relationship with her while serving as her social worker. In upholding dismissal for the defendant, the Court found that the plaintiff had failed to establish that the employer knew or should have known of the employee's propensity to violate ethical conduct requirements.

24

VERCRUYSSE MURRAY & CALZONE, P.C. 3. There is no uniform rule for determining when an employer has conducted a "reasonable investigation." The scope and intensity of the required investigation varies according to the nature of the job involved. a. An employer's duty to hire safe and competent employees virtually always entails at least minimal inquiry into the employee's background. i. In Carlsen v. Wackenhut Corp., 868 P.2d 882, 124 Wash.2d 1022 (Wash. 1994), a sixteen-year-old girl sued the defendant company for negligent hiring after she was sexually assaulted by one of its ushers at a concert. The Court held that the mere fact that there was nothing in the employment application to suggest that the usher had any prior criminal record did not necessarily relieve the employer of its obligation to conduct a background investigation of the applicant. The Court focused on the nature of the employee's position, in this case an usher position that involved constant unsupervised contact with concert-goers, and concluded that a more extensive security background check should have been done. In Lingar v. Live-In Companions, Inc., 300 N.J. Super. 22 (1997), the appellate Court found that the trial court erred in dismissing a negligent hiring claim. In that case, the employer, an agency that provides home care, sent its employee to the home of a disabled individual to provide assistant living care for the individual. Although the employee had represented on his employment application that he had not been convicted of a felony in the past seven years, he in fact had a lengthy record of prior convictions. After arriving at the residence, the employee abandoned the disabled individual and stole various items. While the Court recognized that "[l]iability of an employer is not predicated solely upon failure to investigate the criminal history of an applicant," the Court found that a jury could reasonably conclude that the employer's prehiring investigation was deficient in light of the critical nature of the work performed.

ii.

25

VERCRUYSSE MURRAY & CALZONE, P.C. iii. In Yunker v. Honeywell Inc., 496 N.W.2d 419 (Minn. Ct. App. 1993), dismissal for the defendant was reversed where a male employee shot a female employee in her driveway after being romantically rejected. The Court upheld the dismissal of the negligent hiring claim even though the same employee had previously been employed by the defendant company and was rehired after a five-year stint in jail for the strangulation death of a co-employee because the employee's public contact was minimal. However, on the negligent retention claim, the Court held that the company was arguably put on notice as to the foreseeability of the employee's violent nature, since, during his post-imprisonment employment, the employee had recently sexually harassed female employees and challenged a male employee to a fight.

b.

Nevertheless, where the nature of the employment entails only minimal contact between the employee and third parties, courts generally do not require an independent investigation of the employee. In Guidry v. National Freight, 944 S.W.2d 807 (1997), the Court dismissed a negligent hiring claim against an employer who was sued by a woman after a National Freight truck driver sexually assaulted her while his truck was parked for a rest. Although the driver did not disclose on his employment application that he had a criminal record for sexual misconduct, his record would have been easily discovered by the employer through a search of his military, criminal or previous employment records. As required by law, the employer checked the employee's driving record, but searched no further. The Court held that the employer's obligation to investigate the employee's criminal background, depended upon the foreseeability of risk, weighted against the consequences of placing the burden on the employer. The Court found that the purpose of requiring freight carriers to check driving records of employees is to determine their truckdriving competency, not to prevent general criminal activity. Thus, the Court held that the employer did not owe a duty to the woman to investigate the criminal background of the driver because an assault was not a foreseeable risk.

26

VERCRUYSSE MURRAY & CALZONE, P.C. See also, Connes v. Molalla Transport System Inc., 831 P.2d 1316 (Colo. 1992) (where a truck driver assaulted a hotel clerk, the Court held that the employer had no duty to investigate the non-vehicular background of employees or applicants; the employer did not anticipate that its truck drivers would have much contact with other persons in the scope of their employment, and thus there was no foreseeable need to check an employee's criminal background). c. But where the employment will regularly bring the employee into contact with third parties, the employer must make an independent inquiry into the employee's fitness, or show some other basis for believing that the employee was suitable. In Nigg v. Patterson, 226 Cal. App. 3d 551 3d Dist. (1990), the owner of a laundromat was sued when an employee beat a customer about the head and face with a hammer. In this situation, the private employer had hired a troubled juvenile as part of a rehabilitation program. Although the trial court dismissed the suit, the appellate court reversed and said that the employer's obligation to hire competent, non-vicious employees could not be fulfilled by relying on the screening procedures of the rehabilitation program. d. Generally, an employer does not have a legal duty to investigate a prospective employee's criminal record. However, an employer's duty to conduct an independent investigation does arise in situations where the employment is especially likely to provide opportunities for tortious conduct. This heightened duty is most evident regarding employment involving passkeys, security services, the use of weapons, and health care services. i. In Doe v. Garcia, 961 P.2d 1181 (Idaho 1998), the appellate court reversed dismissal of a claim of negligent hiring of an employee who sexually abused a minor patient where the hospital failed to ask the employee's previous employer for details of the employee's termination. In Williams v. Feather Sound, Inc., 386 So. 2d 1238, 1240 (Fla. Dist. Ct. App. 1980); lv. denied, 392 So. 2d 1374 (1981), a maintenance man used a passkey to gain access to an apartment and assault a tenant. The landlord was found liable for negligent hiring because he had failed to contact previous employers or to check

ii.

27

VERCRUYSSE MURRAY & CALZONE, P.C. references. "If an employer wishes to give an employee the indicia of authority to enter into living quarters of others, it has the responsibility of first making some inquiry with respect to whether it is safe to do so." iii. In Welsh Mfg. v. Pinkerton's, Inc., 474 A.2d 435, 441 (R.I. 1984); appeal after remand, 494 A.2d 897 (1985), the Court held that "reasonable investigation" of a prospective security guard required that the employer contact former employers and references to solicit "affirmative statements attesting to [the] applicant's honesty, trustworthiness, and reliability and perhaps also require the disclosure of the basis upon which the recommending person has relied." In Joiner v. Mitchell County Hospital Authority, 186 S.E.2d 307 (Ga. App. 1971), aff'd, 189 S.E.2d 412 (Ga. 1972), the Court held that a hospital had an affirmative duty to conduct an independent investigation into the professional competence of its staff physicians; it could not simply rely on the fact that the physicians were licensed by the state.

iv.

e.

All inquiries, investigations, background checks, etc., must be conducted in such a way as to comply with anti-discrimination and privacy laws.

4.

Negligent hiring has so far received little attention from Michigan courts. a. That Michigan recognizes a cause of action for negligent hiring was established by Hersh v. Kentfield Builders, Inc., 385 Mich. 410 (1971). In Hersh, the plaintiff was attacked by the defendant's employee, a "casual laborer" hired to do clean-up and odd jobs around the defendant's model homes. The employee did not ordinarily come in contact with the public. Unbeknownst to the employer, the employee had a prior conviction for manslaughter. At trial, a jury found the defendant liable for negligent hiring, on grounds that the employer should have known of the employee's criminal record. The Court of Appeals reversed, holding that the nature of the job subjected the employer to a lower standard of care and that the question should have been decided by the Court as a matter of law. The Supreme Court reversed, holding that the question of negligence had properly gone to the jury.

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VERCRUYSSE MURRAY & CALZONE, P.C.

More recently, in Murdock v. Higgins, 454 Mich. 46, 55 (1997), the Court found that the employer-employee relationship can impose a duty upon the employer under certain circumstances to refrain from hiring employees in a grossly negligent manner. The Court held, however, that the employer in Murdock had no such duty to the victim of a sexual assault because, when the assault took place, the alleged perpetrator no longer worked for the employer and the perpetrator was no longer the plaintiff's supervisor. Further, the assault took place during a voluntary social outing after the victim's work for the employer had ceased. Likewise, in Bean v. Directions Unlimited, Inc., 462 Mich. 24 (2000), the Court rejected a negligent hiring claim where the plaintiff failed to show that the alleged negligent hiring of an employee accused of sexually assaulting a co-worker was the proximate cause of the alleged injury. While the victim and perpetrator were fellow employees, they were also fellow members and owners of the defendant business, a drop-in center owned by its members and whose members are limited to adults who are recovering from emotional, mental health, alcohol or drug abuse problems. The assault took place before open business hours and was not effectuated as a result of the perpetrator exercising authority given to him by the employer. b. The Michigan Court of Appeals has only touched on the subject in a few scattered contexts. i. In Teadt v. Lutheran Church Missouri Synod, 237 Mich. App. 554, 583 (1999), a negligent supervision case, the plaintiff sued the church alleging that due to the church's negligent supervision of its pastor, the pastor improperly initiated a sexual relationship with the plaintiff in the course of counseling her. The plaintiff also alleged breach of fiduciary duty and intentional infliction of emotional distress against the pastor. The Court found that the plaintiff failed to establish any of its claims against the pastor and dealt only briefly with the negligent supervision claim: "[b]ecause plaintiff failed to establish that [the pastor] committed any actionable misconduct, her claims against [the church] for any alleged negligent supervision of [the pastor] must fail."

29

VERCRUYSSE MURRAY & CALZONE, P.C. ii. In Downer v. Detroit Receiving Hospital, 191 Mich. App. 232 (1991), the plaintiff brought an action against a male supervisor and the hospital alleging sexual harassment, negligent supervision and negligent hiring. The record indicated that when plaintiff complained, the hospital investigated and terminated the supervisor. The Court dismissed the claims of sexual harassment and negligent hiring after finding that the plaintiff did not plead that the employer had actual knowledge of the supervisor's propensities and disregarded that knowledge. The Court held that negligent hiring was an intentional tort and that the claim was barred by the exclusive remedy provision of the Workers' Disability Compensation Act. In Giddings v. Detroit, 178 Mich. App. 749 (1989), the Court held that governmental immunity can preclude a claim of negligent hiring. There, a volunteer teaching assistant was assaulted by a school security guard. The Court held that her claim of negligent hiring was barred by governmental immunity. In Smith v. Merrill, Lynch, Pierce, Fenner & Smith, 155 Mich. App. 230 (1986), a customer sued his brokerage firm when one of its stockbrokers failed to repay a personal loan. The trial court dismissed the case and the Court of Appeals affirmed, noting that the plaintiff had failed to present any evidence regarding the duty owed by a brokerage firm to its customers involving the hiring of stockbrokers, and thus had failed to make out a prima facie case of negligent hiring.

iii.

iv.

c.

The Sixth Circuit United States Court of Appeals in Stalbowsky v. Belew, 205 F.3d 890 (6th Cir. 2000), affirmed the dismissal of a negligent hiring claim brought by a murder victim's estate against a trucking company where the company had hired a truck driver who raped and killed the victim. The driver had picked up the victim after she had become stranded at an interstate rest area. The Court found that although the employer knew or should have known that the driver had earlier been convicted of arson on one occasion and had been accused by a former girlfriend of striking her, tying her feet and pulling her out of her house by the hair while her 8-year old son watched, there was no evidence that the company should have reasonably foreseen that the driver was likely to

30

VERCRUYSSE MURRAY & CALZONE, P.C. assault a total stranger while driving for the company several years later. 5. Employers should take the following steps to guard against liability for negligent hiring: a. b. c. Require all applicants to complete a written application and a personal interview. Obtain the applicant's consent to acquire information from previous employers. Contact previous employers and personal references to determine whether the applicant is trustworthy, honest, and reliable. Check out all information provided by the applicant, with special attention to unusual entries. Investigate an applicant's record of felony convictions or pending felony arrests. Document all steps taken to investigate the applicant. Negligent hiring claims can surface long after an individual has been hired. Maintaining accurate records of an employee investigation is almost as important as conducting the investigation itself. Courts are unsympathetic to employers' claims that they have conducted a "reasonable investigation," where the dangerous propensities of the employee are well documented but the employer has no record of the investigation. Be aware that the federal Fair Credit Reporting Act, discussed above, governs the procurement and use of much of the above information when that information is obtained by a consumer reporting agency rather than directly by the employer.

d. e. f.

g.

31

VERCRUYSSE MURRAY & CALZONE, P.C. D. CRIMINAL BACKGROUND CHECKS 1. Most courts have concluded that employers are entitled to conduct conviction inquiries because they present a legitimate concern and that a policy of rejecting an applicant with a conviction record does not have a per se disparate impact on minorities. See, e.g., Hill v. United States Postal Service, 522 F. Supp. 1283 (S.D.N.Y. 1981). However, in recognizing that minorities are subject to arrest for serious crimes in disproportionate numbers, federal courts accepted long ago that inquiries into arrest records are prohibited unless the employer shows that the inquiry is job-related. Gregory v. Litton Sys. Inc., 316 F. Supp. 401 (D.C. Cal. 1970), aff'd, 471 F.2d 631 (9th Cir. 1972); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971), cert. denied 406 U.S. 950 (1972). It is the position of the EEOC that the mere request for arrest information is illegal, even if the employer never considers the information when making employment decisions, because the request tends to discourage minority applicants. On March 10, 2000 an amendment to the Michigan Elliott-Larsen Civil Rights Act significantly changed the law in Michigan with respect to employment inquires into arrest records. Before the March 10 amendment, an employer was prohibited from asking a job applicant or employee about any arrest in which a conviction did not result. M.C.L.A. 37.2205(a) (pre-March 10 amendment). The amendment to that provision of the Civil Rights Act limited the reach of the prohibition such that employers are now only prohibited from inquiring into, or maintaining records of information regarding "a misdemeanor arrest, detention, or disposition where a conviction did not result." M.C.L.A. 37.2205(a) (as amended March 10, 2000) The prohibition in Michigan against inquiring about misdemeanor arrests does not extend to felony charges before conviction or dismissal. Id. See also Mich. Op. Atty. Gen. 1999, No. 7030 (ElliottLarsen prohibits the Michigan Department of Corrections from requiring its employees to report to it misdemeanor arrests and related criminal proceedings which do not result in a conviction). 2. Moreover, the need to conduct criminal background checks has increased significantly as courts more and more hold employers responsible for the acts of their employees. To obtain a criminal history on a prospective employee, employers need only do the following: a. Submit a formal written request on company letterhead to the Michigan State Police Criminal Justice Information Center,

32

VERCRUYSSE MURRAY & CALZONE, P.C. 7150 Harris Drive, Lansing, Michigan 48913. The request should be typed and double-spaced, must clearly note that it is a request for a criminal conviction history, and must contain the name, including any previous names or aliases, social security number, and driver's license number of the applicant. b. Enclose a $5.00 check or money order may payable to the "State of Michigan." Such a request generally takes about three weeks to process and return.

PRE-EMPLOYMENT TESTING: EMPLOYEE PHYSICALS AND DRUG TESTS I. MEDICAL EXAMINATIONS AND INQUIRIES A. With minor exceptions, it is unlawful for an employer to conduct a preemployment medical examination of an applicant or make inquiries as to whether an applicant is an individual with a disability or into the nature or severity of the disability. It is permissible for an employer to make a pre-employment inquiry into the ability of an applicant to perform job-related functions, and/or ask the applicant to describe or demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job-related functions. An employer may require a medical examination after making an offer of employment but before the applicant begins his/her employment duties, and the offer of employment may be conditioned on the results of such examination if all entering employees in the same job category are subjected to an examination regardless of disability. 1. Information on the medical condition of the applicant shall be kept and maintained on separate forms and in separate files and treated as confidential. Supervisors, managers and first aid personnel may be informed regarding the necessary restrictions and necessary accommodations.

B.

C.

2. D.

The results of the examination may not be used for any purpose inconsistent with the ADA.

33

VERCRUYSSE MURRAY & CALZONE, P.C. E. The examinations do not have to be job-related and consistent with business necessity but if certain criteria are used to screen out an employee with disabilities as a result of examination or inquiry, the exclusionary criteria must be job-related and consistent with business necessity. It must also be established that the performance of the essential job functions could not be accomplished with reasonable accommodation as required by the ADA. 1. 2. It is advisable to make sure the doctor conducting the medical examination knows the requirements of the job. In the event the medical examination reveals problematic information connected to ability to perform the job, it is important to obtain clarification of the medical information.

II.

PSYCHOLOGICAL TESTING A. Under the federal Civil Rights Act of 1991 testing is permitted as long as it is not designed, intended or used to discriminate. One of the problems with psychological testing is whether the test as designed has an adverse impact on a protected group. In the event an employer utilizes a psychological test, the key is whether the test was properly validated, i.e. demonstrates a relationship between the selection procedure and the job performance. 1. Various ways to validate a test include: criterion-related validity studies, which show that there is a statistical relationship between the scores and the job performance; content validity studies, which are used to show that the test representatively samples part of a job; and constructive validity studies, which identify the psychological traits necessary for the job and devise a procedure to measure for the presence of those traits. The EEOC has adopted uniform guidelines on employee selection procedures. See 29 C.F.R. 1607. These guidelines give very specific requirements concerning the standards for these studies and the documentation that must be maintained which at a minimum includes: a. b. c. When and where the study was conducted; A description of the selection procedure, how it used results by race, sex and ethnic group; How the job was analyzed or reviewed and what information was obtained from the job analysis;

B.

2.

34

VERCRUYSSE MURRAY & CALZONE, P.C. d. e. f. C. Evidence demonstrating that the selection procedure is related to the job; What alternate selection procedures were studied and results of the study; and The name, address and telephone number of a person with further information about the study.

Even though the employer may rely on validity studies conducted by persons other than the employer using the test, the employer is responsible for compliance with standards for the validity studies. Thus, any employer who uses tests should insure that the necessary information to support their validity has been determined and will be made available. Employers using the test must maintain the records regarding the impact of the test upon race, sex and ethnic groups. Employers should be careful about using psychological tests. In the event psychological tests disclose information of a private nature, such as someone's religious beliefs, family life, marital status, and social life, they may violate discrimination laws that prohibit inquiries into these areas. Further, employers must take care that the psychological tests do not screen out applicants who are defined as handicapped under the PDCRA or the ADA. Under these statutes individuals who suffer from psychological disorders are protected. 1. The May 1994 regulations issued by the EEOC indicate that psychological tests may be considered a medical examination under the ADA. See EEOC Enforcement Guidance, October 1995. The EEOC guidelines indicate that interpretation of the psychological test results by a psychologist or psychiatrist may cause the tests to be considered medical examinations. The EEOC guidelines indicate that screening for qualities such as honesty is probably permissible under the ADA. However, looking for evidence of psychological problems that would disqualify the individual from employment can lead to a legal challenge under the ADA.

D. E.

F.

2.

3.

35

VERCRUYSSE MURRAY & CALZONE, P.C. G. Be aware that psychological screening devices can give rise to invasion of privacy claims. In Soroka v. Dayton-Hudson Corp., 6 I.E.R. 1491, 235 Cal. App. 3d 654 (1991), rev. granted, 822 P.2d 1327 (Cal. 1992), rev. dismissed, 862 P.2d 148 (1993), an applicant for a Target Store security guard position was required to pass a psychological screening test. The appellate court reversed the denial of the employee's request for a preliminary injunction. The purpose of the psychological test set forth by the employer was to measure good judgment and emotional stability. The questions on the test included questions about religious attitudes, and questions that could reveal the sexual orientation of an individual. The test rated the applicant on five traits: emotional stability, interpersonal style, addiction potential, dependability and reliability, and socialization. A formal validation study of the test was never conducted. 1. The Court determined in response to a right of privacy challenge that any violation of a right to privacy for a job applicant had to be justified by a compelling interest. The Court held that there had to be a clear, direct nexus between the nature of the employee's duties and the test and that no such nexus existed. Soroka cautions employers that they cannot engage in unfettered psychological profile screening of applicants. However, the case must be viewed in its proper perspective in that the questions asked were extreme.

2.

3.

H.

In Merillat v. Michigan State University, 207 Mich. App. 241 (1994), the Michigan Court of Appeals held that a plaintiff stated a prima facie cause of action under the Michigan Handicapper's Civil Rights Act when she was terminated after refusing to take a psychological examination. Based on personal observations, the plaintiff's own statements and statements by coworkers, the employer thought the plaintiff "suffered from some form of psychological and/or emotional problem which was affecting her work performance." There was no evidence that she was unable to perform her duties. The trial Court granted the employer's request for dismissal because her refusal to undergo a psychological evaluation meant she had failed to assert a handicap under the Michigan Handicapper's Civil Rights Act. The Court of Appeals, however, found that the trial court had wrongfully dismissed her cause of action because she had stated sufficient facts to set forth a prima facie case of discrimination.

36

VERCRUYSSE MURRAY & CALZONE, P.C. 1. First, since the defendant sought the psychological examination because it thought plaintiff to be mentally or emotionally impaired, the employer had a perception of plaintiff as mentally unstable which fell within the statutory definition of "handicap." Second, this perceived handicap was unrelated to the performance of her duties as a dispatcher. Finally, she was discharged "on the basis of" physical or mental examinations that are not directly related to the requirements of a specific job. The Court held that since the plaintiff would have had a cause of action if she "failed" an allegedly irrelevant physical or psychological examination, she also would have one if she refused in the first instance to submit herself to the same. Although Merillat was a claim brought by a discharged employee, this case seems also to pertain to applicants. It is possible that under Merillat an employer could not refuse to hire an employee or applicant where an offer is made conditional upon the successful completion of the psychological evaluation, based on a perception that the applicant may have some form of mental or emotional instability.

2. 3.

4.

III.

PRE-EMPLOYMENT TESTING AND THE AMERICANS WITH DISABILITIES ACT A. Qualification standards, selection criteria or employment tests that screen out or tend to screen out disabled individuals on the basis of disability are unlawful unless the standard, test or other selection criteria is shown to be job related for the position in question and is consistent with business necessity. It is unlawful to fail to select and administer employment tests in the most effective manner to insure that when administered to a job applicant who has a disability that impairs sensory, manual or speaking skills, the test results accurately reflect the skills, aptitude or whatever other factor of the applicant the test purports to measure, rather than reflecting the impaired sensory, manual or speaking skills of the applicant (except where such skills are the factors that the test purports to measure). Defenses an employer may rely on in response to an allegation of discrimination include that an alleged application of qualification standards, tests or selection criteria that screens out or otherwise denies the job to an individual with the disability has been shown to be job-related and consistent with business necessity, and that such performance cannot be accomplished with reasonable accommodation. Another defense includes that the person is not qualified because the individual poses a direct threat to the health or safety of the individual or others in the workplace.

B.

C.

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VERCRUYSSE MURRAY & CALZONE, P.C.

D.

Individuals currently engaged in the illegal use of drugs, defined as a controlled substance Schedules 1-5, are exempt from ADA coverage. However, this does not include the use of a drug taken under the supervision of a licensed health care professional. 1. However, if individuals no longer engage in the illegal use of drugs, or have participated in a supervised rehabilitation program and no longer engage in the use of drugs, or are erroneously regarded as engaging in the use of drugs, but are in fact not so doing, they are protected by the Act. An employer may adopt drug testing to insure that an individual is no longer engaging in the illegal use of drugs. A test to determine the illegal use of drugs is not considered a medical examination. The administration of drug tests by an employer to its job applicants or employees is not a violation of the ADA. Any information regarding the medical condition or history of an employee or applicant obtained from a test to determine the illegal use of drugs, except information regarding the illegal use of drugs, is subject to confidentiality requirements.

2.

3.

E.

AIDS Testing 1. 2. An individual with the HIV infection, AIDS-Related Complex or AIDS is covered under the definition of disability under the ADA. Employers may not deny employment to people with HIV or AIDS because of perceived future inability to work, even if the inability may be imminent. Cain v. Hyatt, 734 F. Supp. 671 (E.D. Pa. 1990). In School Board of Nassau County v. Arline, 480 U.S. 273 (1987), the court prohibited an employment decision based upon "society's accumulated myths and fears about disability and disease." Thus, fears of co-workers or customer preference cannot be a basis to deny an individual with the HIV virus or AIDS employment. A decision to deny employment to an individual with AIDS based on a claim that the individual poses a threat to heath and safety will most likely not withstand legal challenge, absent extenuating circumstances. The Michigan Civil Rights Commission has adopted a statement on AIDS. The Commission has decreed that AIDS falls under the statutory definition of a handicap under the Michigan Persons with Disabilities Civil Rights Act. The statement further advises employers

3.

4.

5.

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VERCRUYSSE MURRAY & CALZONE, P.C. that the Michigan Public Health Advisory Council has concluded that there is no need for special precaution against AIDS in the workplace. The Michigan Department of Civil Rights will accept and process complaints from people who believe they have been discriminated against in employment because of AIDS, or a related condition or perception of AIDS. 6. For cases where AIDS is found to be a handicap see Leckelt v. Board of Commissioners of Hospital District No. 1, 909 F.2d 820 (5th Cir. 1990); Ray v. School District of Desoto County, 666 F. Supp. 1524 (M.D. Fla. 1987); Cronan v. New England Telephone Co., 41 F.E.P. 1273 (Mass. Sup. Ct. 1986).

IV.

DRUG TESTING A. Employers in both the private and public sectors must be aware that there has been much litigation surrounding the administration of drug testing. However, current case law suggests that the administration of drug tests to job applicants is permissible in the private and public sectors. Drug testing of job applicants is generally not a mandatory subject of bargaining in the union setting. Star Tribune, 295 N.L.R.B. No. 63 (1989). Much of the case law draws a distinction between private and public sector employers, because the U.S. Constitutional provisions against unreasonable search and seizures are invoked in the public setting. Nonetheless, many state constitutions guarantee privacy rights of all employees and therefore these same legal theories are finding their way into the private sector. In addition to constitutional guarantees of privacy rights, many states recognize common law rights of privacy under which some drug testing policies are challenged. In addition to the constitutional challenges to drug testing, the common law theories under which drug tests generally are challenged include defamation, intentional infliction of emotional distress and invasion of privacy. Drug tests are excluded from the definition of medical examinations under the ADA. Drug testing is also not prohibited by the Michigan PDCRA. It must be emphasized, however, that although the ADA and PDCRA do not prohibit drug tests of applicants, they do not encourage it either.

B.

C.

D.

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VERCRUYSSE MURRAY & CALZONE, P.C. The ADA expressly states that medical test results must be kept confidential and this restriction likely extends to drug tests. Further, while drug tests are excluded from the ADA's definition of medical examination, a policy requesting information about drug use may be unlawful. See, e.g. Roe v. Cheyenne Mountain Conference Resort, 920 F. Supp. 1153 (D. Colo. 1996) (employer's policy requiring employee to disclose lawful prescription drug use constitutes inquiry into employee's disability prohibited under ADA; however, court noted that policy could be saved if shown to be job related and consistent with business necessity). E. The following guidelines should help place the employer in a good defensive position in the event a drug test is challenged: 1. The employment application should clearly set forth that the applicant will be required to submit to a drug test. The employment application should be signed, indicating the applicant's consent to the drug test. A signed consent and release form should be signed prior to conducting the drug test. The drug test should be administered to respect the privacy and dignity of the applicant. Both screening and reliable confirmation tests should be employed. Laboratories should be certified and experienced. The chain of custody of the documentation surrounding the drug testing must be accurate and filled with safeguards. In the event a drug test comes back positive, it should be confirmed with a second test, such as a gas chromatography/mass spectrometry [GC/MS]. In some circumstances, the applicant should be given a chance to explain positive test results. The results of the test should be kept private. They should not be disseminated to anyone else but the applicant. Messages should not be left at the home of the applicant, unless the applicant answers the telephone. The results of the drug test should be kept separate from the rest of the application process contents. The results of the drug test should not be disseminated to the outside world.

2. 3.

4. 5.

6. 7.

8.

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VERCRUYSSE MURRAY & CALZONE, P.C. F. The following are cases that illustrate the legal challenges to drug tests. Again, constitutional concerns generally arise in the public sector. However, private sector employers must recognize that privacy rights may extend to them. 1. In Middlebrooks v. Wayne County, 446 Mich. 151 (1994), the issue before the Michigan Supreme Court was whether Wayne County's requirement that a general laborer undergo drug testing prior to being hired was in violation of that applicant's constitutional rights. The Court held that the nature of the plaintiff's general laborer job, which involved operating a riding lawn mower, front-end loaders, trucks and other equipment between a work site and repair facility, was sufficiently dangerous that the use of a drug test outweighed the reduced expectation of privacy held by the applicant. Therefore, testing by the state was allowed pursuant to the Fourth Amendment. The Court also found lack of evidence that there was a failure to provide notice to applicants that testing would be conducted, that applicants would be arbitrarily selected for testing, or that the information resultant from testing would be misused. Accordingly, the Court held there were no procedural inadequacies that would give rise to due process concerns. The Court also declined to interpret the Michigan Constitution to provide greater protection than that currently available under the Fourth Amendment. In Baggs v. Eagle Picher Industries, Inc., 957 F.2d 268 (6th Cir. 1992), cert. denied, 506 U.S. 975 (1992), the employer adopted a drug policy that clearly set forth the right to conduct surprise, random, drug test. Several employees refused to submit to the drug test and were dismissed as voluntary quits. Others, who submitted to the drug test were dismissed from employment based on the positive drug test results. The plaintiffs claimed wrongful discharge in breach of an employment contract, defamation, invasion of privacy, misrepresentation, negligence and a violation of the Persons With Disabilities Civil Rights Act. The lower court dismissed plaintiffs' claims. On appeal, the plaintiffs only challenged the district court's grant of summary judgment on the breach of contract claim, defamation and invasion of privacy claims. a. The Sixth Circuit Court of Appeals upheld the trial Court's decision. The Sixth Circuit determined that the employees were at-will, that no contractual rights were breached, and that under any circumstances, drug use was clearly set forth as constituting just cause for release from employment. Next, the Court found that the comments to the press, even if not protected by a qualified privilege, were not defamatory.

2.

b.

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VERCRUYSSE MURRAY & CALZONE, P.C. The company told the press that employees were given the opportunity to leave the plant and be considered a voluntary quit, rather than submit to the drug test. The company did not say that the individuals released were drug users. Finally, many of those released admitted to drug use and truth is an absolute defense to a claim of defamation. c. The Court repeated that Michigan law had long recognized a common-law right to privacy. Since this was a private sector setting, the privacy claims were not invoked under any constitutional provision. After analyzing the facts of the case under the common law privacy rights, the Court determined that the company's conduct did not invade a matter that the plaintiffs had a right to keep private under Michigan law and the company had not disclosed any private facts to the public.

3.

In McKenzie v. Jackson, 557 N.Y.S.2d 265 (1990), the Court upheld periodic testing of probationary prison guards, balancing the interest of the governmental entity against the reasonable expectation of privacy. There, the guards were required to produce specimens while under direct supervision. However, in Luck v. Southern Pac. Transport Co., 218 Cal. App. 3d 1 (1990), cert. denied, 498 U.S. 939 (1990), a California Court extended the state's constitutional privacy protections to private sector conduct. It held that urinalysis drug screening by private employers was an intrusion into the privacy of employees that had to be justified by a compelling interest. In Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989) and National Treasury Employees Union v. Von Rabb, 489 U.S. 656 (1989), the U.S. Supreme Court held that the Fourth Amendment did not prohibit drug testing, even though it did constitute a search under the Constitution. In those cases, it was found that the employees' expectations of privacy were limited and public interest in the test results were significant under the circumstances. Following that analysis, in O'Connor v. Police Commissioners, 557 N.E.2d 1146 (Mass. 1990) and Gauthier v. Police Commissioner, 557 N.E.2d 1374 (Mass. 1990) the Court held that the drug testing of all probationary police cadets with no notice, other than pre-employment consent forms, did not violate any Massachusetts constitutional rights.

4.

5.

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VERCRUYSSE MURRAY & CALZONE, P.C. V. POLYGRAPH EXAMINATIONS A. Michigan has a statute that controls the use of polygraph examinations in the employment setting. 1. As a general rule, an employer or employment agency cannot as a condition of employment request or require a job applicant to take or submit to a polygraph examination. Further, an employer cannot require that an applicant give an express or implied waiver of a practice prohibited by the Michigan Polygraph Protection Act of 1981, M.C.L.A. §37.201 et seq. Thus, the most cautious approach under the Michigan law is for an employer not to use any form of a polygraph examination in the employee selection process. The employer must be cautioned that a polygraph examination is broadly defined under the statute to include psychological stress evaluation or examination or any other procedure which involves the use of instrumentation or mechanical device. The definition includes a lie detector test, psychological stress evaluator exam or similar test. Further, an employer cannot avoid the polygraph Act prohibitions by asking an applicant questions, recording the statements and subsequently submitting them for evaluation. The exception to the prohibition of use of polygraph examinations in the hiring process is where an applicant for employment voluntarily requests a polygraph examination. However, the request must truly be voluntary. Further, the following safeguards then must surround the polygraph examination: a. No questions may be asked that are prohibited under M.C.L.A. §338.1719(j). This includes questions regarding the applicant's "sexual practices, labor union, political, or religious affiliations, or his or her marital relationship, except where such questions have a bearing on the areas or issues under examination." The applicant must be appraised of all specific question areas to be explored before their actual exploration during the examination; The applicant must be informed of the right to accept or refuse the examination, the right to halt the examination at any time it is in progress, and the right to refuse to answer any question or give any information;

2.

3.

b.

c.

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VERCRUYSSE MURRAY & CALZONE, P.C. d. The applicant must be advised that the information could be used against him or her or could be made available to the employer, unless it was agreed to in writing by the applicant; and The applicant must be provided with a copy of the examination results and all reports or analyses done by the examiner that are shared with the prospective employer.

e.

4.

Despite the voluntary agreement of an applicant to submit to the test and compliance by the prospective employer with required safeguards, an employer is prohibited under the statute from taking any action against an applicant based on alleged or actual opinion that the applicant did not tell the truth during a polygraph examination. The question then becomes what weight, if any, may the employer give to the results of any perceived adverse polygraph examination results. Information on the results of the applicant's polygraph examination may not be shared with any person except the applicant. In the event a polygraph examination is administered, it must be done by an individual licensed to perform such test.

5. 6. B.

Federal Law: Employer Polygraph Protection Act of 1988 1. The federal law prohibits an employer from directly or indirectly requiring, suggesting or causing a prospective employee to take or submit to any lie detector test. Further, the employer may not use, accept, refer to or inquire about the results of any lie detector test of a prospective employee. The employer may not deny an employment opportunity to a prospective employee who refuses, declines or fails to take or submit to a lie detector test or on the basis of the results of any lie detector test. Penalties for violation of the Employee Polygraph Protection Act of 1988 include a civil penalty of $10,000, legal or equitable relief, including but not limited to, employment, reinstatement and other payment of lost wages and benefits. The prevailing party may recover reasonable costs including attorney fees. The statute does not apply to the United States government or any state or local government or political subdivision thereof. There are further exemptions for individuals involved in national defense and security,

2.

3.

4.

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VERCRUYSSE MURRAY & CALZONE, P.C. FBI contractors and those authorized to manufacture, distribute or dispense controlled substances. 5. There is a limited exemption that allows for the use of polygraph examinations for ongoing investigations, but it is unlikely that this exemption would have any applicability to an applicant for employment. The federal Act concludes that the statute is not to preempt any provision of any state or local law or of any negotiated collective bargaining agreement that prohibits lie detector tests or is more restrictive with respect to lie detector tests than any provision of the act.

6.

C.

In the event a polygraph test is administered to an applicant, other bases for challenges across the country have included that the test constituted an unconstitutional violation of the right to privacy and a denial of equal protection of the laws. In O'Hartigan v. State of Washington, 7 I.E.R. 166 (Wash. S. Ct. 1991), a woman applied as a word processor for a position with the state police department. The state statute prohibited polygraph examinations, except for the police force. Also, because the position sought was a municipality position, the federal statute did not apply. The trial court found that the mandatory polygraph exam violated her federal constitutional rights to privacy and violated the equal protection of the laws. The Washington Supreme Court reversed. 1. The Court recognized that if a practice or a standard implicates privacy concerns there is a constitutionally protected interest involved. If the privacy rights concerned involve autonomous decision-making, a strict scrutiny standard would be applied by the Court. If the test involved confidentiality issues, a rational basis analysis, i.e. whether the test was carefully tailored to meet a valid government interest, would be employed. The polygraph exam asked questions about medical history, psychological history and included questions about crimes committed. The Court found that the test was carefully tailored to meet a valid government interest but directed the department to buttress the testing guidelines to make sure that the questions asked were not standardless, boundless inquiries. The Court concluded that there is no valid equal protection challenge where there is no suspect classification involved and where any classification is reasonably related to the purpose of the challenged statute.

2.

3.

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VERCRUYSSE MURRAY & CALZONE, P.C. D. When the Michigan and federal statutes controlling polygraph examinations are read in conjunction, the conclusion one reaches is that it is best for Michigan employers not to utilize polygraph tests in screening job applicants, even if the job applicant agrees to it. USING THE EMPLOYMENT APPLICATION TO THE EMPLOYER'S BEST ADVANTAGE I. GENERAL CONSIDERATIONS

Despite the restrictions imposed by the discrimination laws, it is important that applications remain a critical component of the hiring process. In addition to providing useful baseline information about an applicant's education, abilities and experience, the application can be utilized for other valuable purposes: 1. All applicants should be required to sign and date application forms which include an agreement not to bring suit related in any way to their employment more than six-months after the date of termination of employment and to waive any statute of limitations to the contrary. But see, Section II, C below. If the employment relationship will be "at will", the statement signed by the applicant should acknowledge the "at will" nature of the employment relationship. In addition, all applicants should be required to sign and date application forms verifying the truth of the information provided and stating that the application process will be ended or their subsequent employment terminated if the information provided is later discovered to be false. The statement signed by applicants should also include a release for all information to be sought from references. As noted above, if the employer utilizes a drug testing procedure, the application also can be used to secure the applicant's commitment to participate in the procedure.

2.

3.

4. 5.

II.

SHORTENING THE STATUTE OF LIMITATIONS

The hiring process is a good place to include a shorter statute of limitations for bringing claims against the employer. Shortening the statute of limitations can be done on the employment application form or in a separate acknowledgment form or employment letter.

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VERCRUYSSE MURRAY & CALZONE, P.C. A. Recently the Michigan Court of Appeals in Timko v. Oakwood Custom Coating, 244 Mich. App. 234 (2001), approved a reduced limitations period. Two days after a tool and die worker started, he signed a portion of an employment application which provided that his employment was "at will" and also specified, in bold print and immediately above his signature: "I agree that any action or suit against the firm arising out of my employment or termination of employment, including, but not limited to, claims arising under State or Federal civil rights statutes, must be brought within 180 days of the event giving rise to the claims or be forever barred. I waive any limitation periods to the contrary." Five and one-half months later, the employee was terminated for unsatisfactory performance. Approximately 13 months after his termination, the former employee sued, alleging that he was fired because of his age. The employer moved to dismiss the case, arguing that it had been filed beyond the 180-day period specified in the employment contract. In a 2-1 decision, the Court of Appeals affirmed the trial court, finding that the 180-day period was reasonable, that the employment application was part of a valid and binding contract of employment, and that the employment contract was not an unenforceable "contract of adhesion." The Michigan Supreme Court has held that parties may contract for a shorter limitations period if: (1) the claimant has a sufficient opportunity to investigate and file an action, (2) the time is not so short that it effectively deprives the claimant of a right to file, and (3) the action is not barred before loss or damages can be ascertained. The Court of Appeals found that the contract at issue here met the Supreme Court's test. B. Applying Michigan law, at least two federal courts have found that a sixmonth period of limitation contained within an employment agreement qualified as reasonable. In Myers v Western-Southern Life Ins. Co., 849 F2d 259 (CA 6, 1988), the plaintiff signed an employment contract agreeing "[n]ot to commence any action or suit relating to your employment . . . more than six months after the date of termination of such employment, and to waive any statute of limitation to the contrary." The plaintiff filed a constructive discharge lawsuit more than sixteen months after he retired, alleging age and handicap discrimination in violation of the Elliott-Larsen Civil Rights Act and the Michigan Handicappers' Civil Rights Act. In affirming dismissal of the case, the court concluded that there was nothing inherently less reasonable about a six-month limitations period than that applied to fair representation claims under the Labor Management Relations Act. Likewise, in Perez v Western-Southern Life Ins. Co., 1987 WL 16355 (E.D. Mich., 1987), the court observed that while a three-year period of limitations for injuries to a person alleging discrimination in employment practices applied under the Elliott-Larsen Act, there is nothing in the Act which

47

VERCRUYSSE MURRAY & CALZONE, P.C. prohibits a shorter reasonable period agreed upon by the parties or evinces any state public policy to the contrary. C. Furthermore, Both Michigan and federal law apply six-month periods of limitation for filing a charge where an employee's civil rights are involved. See Michigan Administrative Code, R 37.4(6); 42 USC 2000e-5(e)(1). CAVEAT: Under certain circumstances the time limit for filing a charge may be extended to 300 days according to 42 USC 2000e-5(e)(1). Therefore, there may be some concern that in an appropriate case the EEOC might challenge a statute of limitations that is less than 300 days.

III.

PRESERVING THE AT-WILL RELATIONSHIP A. The presumption under Michigan law is that, barring an agreement to the contrary, employment relationships are at will and can be terminated at any time, with or without cause and with or without notice. Under Toussaint v. Blue Cross, 408 Mich. 579 (1980), and its progeny, however, this at-will relationship may be altered so that employers are contractually bound by express statements of job security (i.e., termination only for good cause) or policies which create legitimate expectations of job security. Since the application form is typically the employee's first formal contact with the employer, it provides an early opportunity to establish an understanding of the basic employment relationship. One of the best defenses to a Toussaint-type contract claim is an express acknowledgment on the application form, signed by each prospective employee, stating: I understand and acknowledge that, if employed, my employment and compensation will be at the will of XYZ Company and can be terminated, with our without cause, and with or without notice, at any time at my option or the option of XYZ Company. I further understand and agree that no manager, agent, representative or employee of the Company other than its President has now or has had in the past any authority to enter into any agreement for employment for any specified period of time or to make any agreement which is contrary to or a modification of the above described employment relationship, and that any such agreement or representation must be in writing and signed by both myself and the President of XYZ Company in order to be effective. B. At-will Acknowledgement Forms

Obtaining a signed at-will statement, whether on the employment application or in a separate acknowledgment form or employment letter (e.g., for a salaried or executive employee who may undergo a different application process than an hourly employee),

48

VERCRUYSSE MURRAY & CALZONE, P.C. preserves the at-will relationship and may undercut subsequent claims of a right to a just cause discharge. In recent years, the Michigan Supreme Court has reaffirmed that a just cause contract arises "only when the circumstances . . . clearly and unambiguously indicate the parties so intended." Rood v. General Dynamics Corp., 444 Mich. 107, 137 (1993). More recently, in Lytle v. Malady (On Rehearing), 458 Mich. 153 (1998), the Michigan Supreme Court recognized that one way an employer can limit creation of a just cause employment contract is to establish "'a company policy of requiring prospective employees to acknowledge that they served at the will or the pleasure of the company. . . .'" See also, Clement-Rowe v. Mich. Health Care, 212 Mich. App. 503 (1995) (Oral statements by a personnel officer cannot create a legitimate expectation of a right to a just cause discharge when the plaintiff signed an employment application containing an at-will disclaimer) and Nieves v. Bell Indus., Inc., 204 Mich. App. 459, 463 (1994) ("When an employment contract expressly provides for employment at will, a plaintiff, by signing the contract, assents to employment at will and cannot maintain an action based on a prior oral agreement for just-cause employment"). C. Avoid Verbal Contracts

The employer should also avoid making any oral assurances of job security or just cause employment. Broadly speaking, alleged oral employment agreements, when based on general statements of job security, are not enforceable. However, courts have found oral contracts for just cause employment where they are based on specific statements of job security made during hiring negotiations or assurances of just-cause employment. For example, in Murphy v. Birchtree Dental, P.C., 964 F. Supp. 245, 248 (E.D. Mich. 1997), the Court held that employer statements that "[w]e don't fire you, you fire yourself," when stated in response to a specific question about job security, could reasonably be understood as a promise of just-cause employment. The Court in Bracco v. Michigan Technology University, 231 Mich. App. 578, 599 (1998), on the other hand, held that no oral express contract was formed even though the plaintiff claimed that employer's director of employee relations assured the plaintiff that there would be no layoffs and that after probations, jobs at employer were "lifetime jobs . . . as long as we done our job." Other recent cases where courts found that no just-cause relationship existed are: Novak v. Nationwide Mut. Ins. Co., 235 Mich. App. 675, 682 (1999) (written contractual at-will provision, accompanied by clause requiring that any contract modifications be in writing and signed by a company representative, not negated by alleged oral statement that at-will provision did not apply to Plaintiff) and Highstone v. Westin Engineering, Inc., 187 F.3d 548, 551-552 (6th Cir. 1999) (employer's assurance that there was plenty of work in Detroit office merely amounted to "optimistic hope" for long-term employment relationship). D. Maintaining The At-will Relationship

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VERCRUYSSE MURRAY & CALZONE, P.C.

Although an employer may succeed in preserving the at-will relationship through the application process, steps should continue to be taken after hire to maintain this relationship. An improperly drafted handbook (as with an improperly drafted application form) can virtually assure an employer of potentially protracted and costly litigation. A properly drafted handbook on the other hand may contain important and helpful statements describing the at-will nature of the employment relationship and explaining that policy statements and handbook provisions do not create binding contracts. The Michigan Supreme Court in Lytle v. Malady (On Rehearing), 458 Mich. 153 (1998), rejected the plaintiff's wrongful discharge claim based on the employer's policy that "no employee will be terminated without proper cause or reason and not until management has made a careful review of the facts" because the policy was insufficient to overcome the "strong" presumption of employment at will, particularly where the original handbook also provided that "the contents of this booklet are not intended to establish . . . any contract between . . . [the employer] and any employee, or group of employees." Id. at 165-166. According to the Court, this contractual disclaimer clearly communicated to employees that the employer did not intend to be bound by the policies stated in the handbook. See also, Highstone v. Westin Engineering Inc., 187 F.3d 548, 552-553 (6th Cir. 1999) (employer's policy manual could not reasonably be interpreted as instilling legitimate expectations of just-cause employment where it contained no express or implied just-cause standard, specifically reserved right to terminate any employee at any time, and disclaimed contract status) and Nieves v. Bell Indus., Inc., 204 Mich. App. 459, 464 (1994) (regardless of alleged oral promises, plaintiff's job application, handbook, and compensation agreement all provided for at-will employment). In Rood v. General Dynamics Corp., 444 Mich. 107 (1993), the Michigan Supreme Court assisted employers by clarifying that the "legitimate expectations" theory under Toussaint is applicable only to "policy statements that are disseminated either `to the work force in general or to specific classifications of the work force, rather than to an individual employee.'" Rood, 444 Mich. at 138. Employers must be vigilant in crafting their handbook statements. The following are suggested disclaimers to place in a handbook: Nothing contained in this booklet (or manual) shall be construed or implied to constitute a contract altering or changing the at-will character of the employment relationship between the Company and its employees. Nothing contained herein shall preclude the right of either the employer or the employee to terminate the employment relationship at any time with or without notice and with or without cause.

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VERCRUYSSE MURRAY & CALZONE, P.C.

The employer retains the right at any time to amend, modify, terminate or replace any of its policies or benefits applicable to employees to whom this handbook is addressed. *NOTE: When the employer retains the right to amend or modify a handbook or policy at any time, a court may later determine that the handbook or policy does not create a binding contract. This can be quite helpful to the employer who is sued for wrongful discharge by a former employee alleging that the handbook or policy created just cause employment. For example, in Lytle v. Malady, 458 Mich. 153 (1998), the Michigan Supreme Court held that an employee could not assert a legitimate expectation of just-cause employment based on the employee handbook where the handbook specifically disclaimed any intent to create contractual obligations with employees. On the other hand, should the employer wish to retain the right to amend its policies and also to have binding agreements of employment with employees, those agreements should be set forth in separately signed documents, apart from the handbook. See Heurtebise v. Reliable Business Computers, 452 Mich. 405 (1996) (where the employer's handbook contained a right-to-modify clause, as well as an affirmative statement that the policies in the handbook do not create a contract, the arbitration clause in the handbook was held to be unenforceable). In addition, arbitration agreements must contain a provision for enforcement of the arbitration award in circuit court or they will be considered a "common-law" arbitration which is revocable by either party at any time before the announcement of an arbitration award. Trompeter v. Catholic Family Services, Mich. App. No. 221658 (Unpublished opinion, September 25, 2001). E. Handbook Receipt Acknowledgment

Finally, it is important to obtain a signed acknowledgment form to establish the employee's receipt of the handbook and that the terms in the handbook supersede all previously made statements of policy. F. Inclusion of Non-competition Agreements

The hiring process is also a good place to include non-competition agreements, to be signed by employees as a condition of employment. However, to be enforceable, non-competition agreements should be signed and dated agreements that are separate from and in addition to the application form. IV. FALSIFICATION OF THE EMPLOYMENT APPLICATION A. It has become increasingly important that employment applications contain language concerning the truthfulness of the information supplied. The

51

VERCRUYSSE MURRAY & CALZONE, P.C. applicant should be required to represent that the information stated in the application is truthful and constitutes a full disclosure of the information sought and that any misrepresentation is grounds for immediate dismissal from employment regardless of when the misrepresentation is discovered. B. In recent years, the after-acquired evidence doctrine has been adopted by many courts across the county. Under the after-acquired evidence doctrine, where an employee's misrepresentation of facts or failure to disclose information would have initially resulted in the employer not hiring the individual, this gives rise to a defense against subsequent wrongful termination or employment discrimination claims, regardless of when the misrepresentation is discovered. Although this doctrine has been used most often in the case of resume fraud, it has also been extended to other situations where an employer learns after a termination that the employee engaged in some type of misconduct and where it can be established that the employee would have been terminated had the employer known of the misconduct. The United States Supreme Court discussed the after-acquired evidence doctrine in McKennon v. Nashville Banner Publishing Co., 115 S.Ct. 879 (1995), a case brought under the Age Discrimination in Employment Act. The Court rejected the holdings of prior courts that after-acquired evidence may automatically serve as a bar to all liability. The Court nonetheless held that after-acquired evidence of misconduct may limit a plaintiff's remedies, including his or her right to reinstatement and front pay after the date the evidence was discovered. Following McKennon, the Sixth Circuit in Wehr v. Ryan's Family Steak Houses, Inc., 49 F.3d 1150 (6th Cir. 1995), limited the scope of the afteracquired evidence doctrine in a case brought under Title VII. The Court rejected the employer's arguments that the plaintiff's resume fraud and alleged misconduct barred any liability under Title VII. The Court held, however, that if the employer could prove that the plaintiff's wrongdoing had occurred and was of sufficient severity that it would have terminated his employment, this would bar reinstatement or an award of front pay. The Michigan Court of Appeals has subsequently applied the after-acquired evidence doctrine as modified by McKennon in a case brought under the Michigan Civil Rights Act. In Wright v. Restaurant Concept Management, Inc., 210 Mich. App. 105 (1995), the Court held that while evidence of resume fraud is not a bar to liability, it may limit a plaintiff's right to seek reinstatement or front pay and backpay after the date the evidence was discovered. The Michigan Court of Appeals reached a similar conclusion in Horn v. Dep't. of Corrections, 216 Mich. App. 58 (1996). In Smith v. Union Twp. (On Rem), 227 Mich. App. 358 (1998), the Michigan Court of Appeals applied the after-acquired evidence doctrine in a refusal to

C.

D.

E.

F.

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VERCRUYSSE MURRAY & CALZONE, P.C. hire case, as opposed to a termination case. The plaintiff claimed that he was denied employment based on his race. During discovery, the employer learned for the first time that the plaintiff had misrepresented his qualifications during the hiring process and was actually unqualified for the position he sought. The Court held that under these circumstances, any backpay award should not be calculated based on the date the resume fraud was discovered. Instead, backpay should be calculated from the date of the unlawful employment action "to the date the defendant would reasonably have discovered the plaintiff's misrepresentations had he been hired." Id. at 36465. Since the resume fraud in Smith involved core qualifications, the Court concluded that the employer would have discovered plaintiff's lack of qualifications very quickly and that the plaintiff, if successful on his claim of discrimination, "would be entitled to extremely limited damages." Id. at 365. G. Other After-Acquired Evidence Cases 1. Grow v. WA Thomas Co., 236 Mich. App. 696, 709-711 (1999) (the after-acquired evidence rule held not applicable to limit emotional distress damages in this hostile environment sexual harassment claim). Bauer v. Varity Dayton-Walther Corp, 118 F.3d 1109 (6th Cir. 1997) (after-acquired-evidence doctrine found to be applicable to claim premised on Family and Medical Leave Act of 1993 (FMLA)). Thurman v. Yellow Freight Sys, 90 F.3d 1160, reh'g, en banc, denied, adhered to, and amended on other grounds, 97 F.3d 833 (6th Cir. 1996) (Sixth Circuit concluded that the after-acquired-evidence defense did not apply where the plaintiff had left blank on the application form a question asking if he had accounts placed for collection, when the plaintiff had a utility account for $27 that had been placed for collection; the employer failed to prove that it could have and would have refused to hire the plaintiff and the omission regarding the utility account and a misstatement regarding dates of employment were not material, particularly because the small utility bill had been paid.

2.

3.

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VERCRUYSSE MURRAY & CALZONE, P.C. H. Employers should take the following steps in order to make full use of the after-acquired evidence doctrine: 1. Include language such as the following in the employment application: I certify that information given in this application and related documentation is true and complete. I understand that XYZ Company may investigate my work and personal history and verify all data given on this application, on related papers and in interviews. I authorize all entities, institutions, individuals and employers named, except as specifically limited on this application, to provide any and all information concerning my education, previous employment and any other information requested about me, and I release them and their employees from liability for damages in providing this information. I understand and acknowledge that any misrepresentation or omission of facts by me can result in a termination of this application process or an immediate discharge regardless of when it is discovered by XYZ Company. 2. Policy manuals should include provisions that reiterate that discovery of misrepresentations or omissions on the employment application or in the interview process can result in immediate discharge. The manner in which an employer enforces its policies can affect whether the after-acquired evidence defense will be available. In order for the defense of after-acquired evidence to be available, it is critical that an employer consistently enforce its policies regarding resume fraud. Prompt action must be taken when a violation is discovered. ACCESS TO PERSONNEL FILES: EMPLOYEE RIGHTS AND EMPLOYER RIGHTS I. RECORD KEEPING REQUIREMENTS A. There is a three-year statute of limitations for claims brought under the Michigan Elliott-Larsen Civil Rights Act, MCLA 37.2101, et seq., and the Michigan Persons With Disabilities Civil Rights Act, 37.1201, et seq., as well as under the federal counterpart to these statutes, Title VII and the ADA. It is therefore prudent for an employer to keep records for at least three years in order to defend against claims of wrongful failure to hire based on these theories.

3.

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VERCRUYSSE MURRAY & CALZONE, P.C. B. However, a six-year statute of limitations exists for breach of contract claims. Accordingly, if an applicant is hired, the employer should retain employment records for at least six years after the employment ends. Under the Federal Age Discrimination In Employment Act, 29 USC 621 et seq., an employer is required to retain records pertaining to failure to hire an individual for one year. These records would include applications completed, tests that were part of the application process and perhaps advertisements for the position. Under Title VII, 42 USC 2000(e), an employer is required to retain every record connected to hiring and employment applications for one year or for one year from the date the personnel action took place, whatever is the latter. If an apprenticeship program is involved, the record retention period is extended to two years. Under the Immigration Reform and Control Act, a completed and signed I-9 form must be retained for three years after the date of hire or one year after termination of employment, whichever is later.

C.

D.

E.

II.

THE BULLARD-PLAWECKI ACT

The Bullard-Plawecki Employee Right to Know Act governs employees' right to review personnel records and the information contained in personnel records. A. What Is A Personnel Record?

"Personnel records" generally include any record kept by the employer that identifies the employee has been used to or which may affect the employee's qualifications for employment, promotion, transfer, additional compensation, or disciplinary action. Personnel records also include records of other entities that have contractual agreements with the employer to keep or supply such records. Personnel records do not include: 1. 2. 3. Employee references, if the identity of the person making the reference would be disclosed. Staff planning materials relating to more than 1 employee, including salary increases, management bonus plans, promotions, and job assignments. Medical reports if the records or reports are available to the employee from the doctor or medical facility involved.

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VERCRUYSSE MURRAY & CALZONE, P.C. 4. Personal information about a person other than the employee if the disclosure of the information would constitute a clearly unwarranted invasion of the other person's privacy. Information that is kept separately from other records and that relates to an investigation by the employer regarding suspected criminal activity. Records limited to grievance investigations which are kept separately and that do not affect the employee's qualifications for employment, promotion, transfer, additional compensation, or disciplinary action. Records kept by an executive, administrative, or professional employee that are not accessible or shared with other persons. However, a record concerning an occurrence or fact about an employee kept pursuant to this subparagraph may be entered into a personnel record if entered not more than 6 months after the date of the occurrence or the date the fact becomes known. Use In Judicial Proceedings

5. 6.

7.

B.

If personnel record information was not provided to an employee as required by the Act, it generally cannot be used by an employer in a judicial or quasi-judicial proceeding at the request of the employee. However, if a judge or hearing officer determines that the omission was not intentional and the employee has been given a reasonable time to review the information, the personnel record information may be used in the proceeding. C. Review Of Personnel Record Upon Written Request

Upon written request by the employee, the employer must provide the employee with a reasonable opportunity to review the employee's personnel record. The review must take place at a location reasonably near the employee's place of employment and during normal office hours. If a review during normal office hours would require an employee to take time off from work with that employer, then the employer shall provide some other reasonable time for the review. The employer may allow the review to take place at another time or location that would be more convenient to the employee. The review generally need not be allowed more than 2 times in a calendar year or as otherwise provided by law or a collective bargaining agreement.

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VERCRUYSSE MURRAY & CALZONE, P.C. D. Copying Information

After the review of a personnel record, the employee may obtain a copy of the information or part of the information contained in the personnel record. An employer may charge a copying fee, which is limited to the actual cost of duplicating the information. If an employee demonstrates that he or she is unable to review his or her personnel record at the employing unit, then the employer, upon that employee's written request, shall mail a copy of the requested record to the employee. E. Removal Or Correction Of Information

If the employee disagrees with information contained in a personnel record, removal or correction of that information may be mutually agreed upon by the employer and the employee. If an agreement is not reached, the employee may submit a written statement explaining the employee's position. The statement shall not exceed 5 sheets of 81/2-inch by 11-inch paper and shall be included when the information is divulged to a third party and as long as the original information is a part of the file. If either the employer or employee knowingly places in the personnel record information which is false, then the employer or employee, shall have remedy through legal action to have that information expunged. F. Disclosure Of Disciplinary Record

An employer or former employer may not divulge a disciplinary report, letter of reprimand, or other disciplinary action to a third party, a party who is not a part of the employer's organization, or to a party who is not a part of a labor organization representing the employee, without written notice. The written notice to the employee must be by first-class mail to the employee's last known address, and be mailed on or before the day the information is divulged from the personnel record. The notice requirement does not apply if: 1. 2. 3. The employee has specifically waived written notice as part of a written, signed employment application with another employer; The disclosure is ordered in a legal action or arbitration to a party in that legal action or arbitration; or The information is requested by a government agency as a result of a claim or complaint by an employee.

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VERCRUYSSE MURRAY & CALZONE, P.C. G. Review Of Information Prior To Release To Third Party

An employer must review the employee's personnel record before releasing information to a third party and, except when the release is ordered in a legal action or arbitration to a party in that legal action or arbitration, delete disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than 4 years old. H. Keeping Record Of Non-employment Activities Is Prohibited

An employer cannot gather or keep a record of an employee's associations, political activities, publications, or communications of non-employment activities, except if the information is submitted in writing by or authorized by employee. This prohibition on records does not apply to the activities that occur on the employer's premises or during the employee's working hours with that employer that interfere with the performance of the employee's duties or duties of other employees. Such records are part of the personnel record. I. Record Of Investigation Of Criminal Activity

If an employer has reasonable cause to believe that an employee is engaged in criminal activity which may result in loss or damage to the employer's property or disruption of the employer's business operation, and the employer is engaged in an investigation, then the employer may keep a separate file of information relating to the investigation. After the investigation is completed or after 2 years, whichever comes first, the employee shall be notified that an investigation of the suspected criminal activity was or is being conducted. If disciplinary action is not taken, upon completion of the investigation, the investigative file and all copies of the material in it must be destroyed. J. Right Of Access To Record Under Other Laws

This Act does not diminish a right of access to records otherwise provided by law. K. Penalty For Violations

If an employer violates this act, an employee may commence an action in the circuit court to compel compliance. Jurisdiction is proper in the circuit court for the county in which the complainant resides, the county in which the complainant is employed, or the county in which the personnel record is maintained. If a violation is found, the court "shall award" a prevailing employee actual damages plus costs. For a willful and knowing violations of the Act, $200.00 plus costs, reasonable attorney's fees, and actual damages are to be awarded. III. IMMIGRATION-RELATED RECORD KEEPING CONCERNS

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VERCRUYSSE MURRAY & CALZONE, P.C.

A.

The Immigration Reform and Control Act imposes certain recordkeeping requirements on employers. 1. Employers must secure documentation from the new employee to verify the ability to work and complete the required I-9 form within 3 days of hire. There are three lists of documents an employer may use to verify work eligibility. The employer must see one of the documents from the Alist or one document each from both the B- and C-lists. a. The A-list includes documents that establish both identity and employment authorization: · · · · · · · U.S. passport Permanent resident card Alien registration receipt card (INS Form I-551) Temporary resident card (INS Form I-688) Employment authorization document (INS Forms I766, I-688B, or I-688A) Foreign passport with a temporary I-551 stamp Foreign passport with INS Form I-94 authorizing employment with the specific employer doing the hiring (for foreign nationals authorized to work only for a specific employer)

2.

b.

The B-list includes documents that verify identity only: · · · · Driver's license State issue I.D. card Native American tribunal document Canadian driver's license or I.D. card (for Canadian nationals authorized to work only for a specific employer)

c.

The C-list includes documents that verify employment authorization only: · · · Social Security card without employment restrictions Native American tribunal document INS Form I-94 authorizing employment with the specific employer doing the hiring (for foreign nationals authorized to work only for a specific employer)

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VERCRUYSSE MURRAY & CALZONE, P.C. 3. 4. All documentation produced must be original. It is unacceptable for the new hire to show the employer a copy of the documents. A completed and signed I-9 form must be retained for three years after the date of hire or one year after termination of employment, whichever is later.

B.

Practical suggestions 1. Employers should complete the I-9 form before the start of the first day of work but after an offer of employment has been made. I-9 forms need to be completely filled out and signed by an employer representative. Just attaching copies of the required documents is insufficient compliance. Re-verification: If a work permit contains an expiration date, the date should be noted on the I-9 form and the employer's personnel department should have a tickler system in place to receive an update to ensure the employee still is lawfully entitled to work in the United States. The I-9 forms should be kept in a separate place from employee files. It is advisable not to question the authenticity of documents used to verify the ability to work unless the document clearly looks altered.

NOTE

2.

3. 4.

The information in this publication is to make you aware of the implications of several contemporary problems. This publication is not intended to be, and should not be regarded as, a legal opinion or legal advice. It is simply not possible or prudent to offer legal advice or a legal opinion without a prior thorough investigation and analysis of the facts attendant to any specific situation.

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INDEMNITY AND HOLD HARMLESS: [Consumer Reporting Agency] ("CRA") understands and agrees that it will comply with all local, state and federal credit reporting statutes, including but not limited to the federal Fair Credit Reporting Act, (the "Act") and all local state and federal discrimination laws and laws governing consumer and employee rights. The CRA further understands and agrees to indemnify the Company and hold it harmless from any and all claims raised by any person, as that term is defined by the FCRA, for any alleged violation of the Act or of any local, state or federal statute or common law cause of action arising from any act or omission by the CRA in gathering, compiling, disclosing or otherwise dealing with information requested by, or that the CRA provides to, the Company. The CRA further understands and agrees that this indemnification and hold harmless provision includes all damages, costs, fees and reasonable attorneys' fees that the Company incurs in defending against and as a result of any such claim or action. The CRA further understands and agrees that the Company retains the right to select counsel of its own choosing to defend any such claim or action.

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VERCRUYSSE MURRAY & CALZONE, P.C. CHECKLIST FOR COMPLYING WITH THE FCRA WHEN USING A THIRD PARTY TO OBTAIN "CONSUMER REPORTS" 1. Certify your compliance with the FCRA.

Before obtaining a consumer report, an employer must certify to the outside investigator (background screeners, criminal history providers, private investigator, law firm, etc.): · · · · · The permissible purpose for which the report is being obtained and that the report will not be used for any other purpose. That proper, written disclosure was given to any employee affected by the investigation. That prior, written authorization was gained from the affected employee. That the information being obtained will not be used in violation of any federal or state equal opportunity law or regulation. That, if any adverse action is to be taken based on the report, a copy of the report and a summary of the employee's rights will be provided to the employee. If an "investigative consumer report" is obtained, an employer must also certify that the several additional required disclosures triggered by that subcategory of "consumer report" were made to the employee.

·

2.

Provide written disclosure to and obtain written consent from the employee. Before obtaining a consumer report, an employer must: · · Give the employee affected by the investigation a clear and conspicuous written disclosure that such a report may be obtained. Obtain prior written authorization from the employee to obtain the report.

The FTC suggests that this written disclosure and written consent may be presented in a single document. However, the disclosure must appear conspicuously. The document must consist solely of the disclosure and the authorization; e.g., it must not be inserted within the fine print of an employee handbook.

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VERCRUYSSE MURRAY & CALZONE, P.C. For investigative consumer reports, there are additional disclosure requirements. An employer commissioning an investigative report must: · · Advise the employee that the investigative consumer report is being sought (this must be done within three days of the date the report is requested). Inform the employee of his or her right to request in writing additional disclosure of the nature and scope of the investigation to be undertaken (this must be done within three days of the date the report is first requested). If the employee does request information on the nature and scope of investigation planned, an employer must provide that additional information to the employee who requests it within five days. Provide the employee with "A Summary of Your Rights Under the Fair Credit Reporting Act" (this must be done within three days of the date the report is first requested).

·

These time frames effectively prohibit blanket disclosures that would allow an employer to obtain a consumer investigative report at any time during an individual's employment. In effect, this warning serves to "tip off" an employee suspected of wrongdoing that he or she is about to be investigated. 3. Notify the employee before adverse action is taken.

If an employer plans to take adverse action (discipline, discharge, denial of promotion, failure to hire, etc.) that is based even in part/ on information contained in the consumer report, before taking that action an employer must provide to the employee who will be the subject of the adverse action: · · A copy of the consumer report. A summary of "Your Rights Under the Fair Credit Reporting Act."

The FCRA does not indicate how long an employer must wait between notifying the employee that adverse action is anticipated and actually taking the adverse action. FTC opinion letters suggest that waiting five business days between the notification and the adverse action "appears reasonable." However, the FTC warns that the waiting period could be shorter or longer depending on the facts of a particular employment situation. 4. Notify the employee after adverse action is taken.

If an employer takes adverse action against an employee or applicant based at least in part on information contained in the consumer report, it must notify the employee in writing, orally, or electronically. This notification must include:

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VERCRUYSSE MURRAY & CALZONE, P.C. · The name, address, and telephone number of the consumer reporting agency (including a toll free telephone number, if it is a nationwide CRA) that provided the report. A statement that the external investigator did not make the adverse decision and is not able to explain or provide specific reasons why the decision was made. Notice of the employee's right to obtain a free copy of the consumer report from the external investigator if the employee requests the report within 60 days. A statement setting forth the employee's right to dispute directly with the external investigator the accuracy or completeness of any information provided.

·

·

·

Obviously some of these requirements duplicate those which must be taken before an adverse action occurs. Therefore, an employer may opt to mail a copy of each applicant's or employee's consumer report along with a notice of rights under the FCRA, as soon as it obtains the report.

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VERCRUYSSE MURRAY & CALZONE, P.C. DISCLOSURE TO APPLICANT REGARDING CONSUMER REPORTS You have applied to [Insert Company Name].(the "Company") for employment. The Company may obtain consumer reports about you from a consumer reporting agency or agencies and may use the reports in deciding whether to hire you. If you are hired by the Company, the Company may obtain consumer reports about you from time to time. The Company may use the reports in deciding whether to retain you, promote you, reassign you, or for other employment purposes. AUTHORIZATION I understand that the Company may not obtain consumer reports about me unless I authorize it to do so. I also understand that if I refuse to give the Company authorization to obtain consumer reports my application for employment will not be considered. (Instructions to Applicant: Check one box below.) I authorize the Company to obtain consumer reports about me. I do not authorize the Company to obtain consumer reports about me.

Date: _________________

Signature of Applicant: __________________ Name - Please Print: ________________________

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VERCRUYSSE MURRAY & CALZONE, P.C. DISCLOSURE TO EMPLOYEE REGARDING CONSUMER REPORTS From time to time, [Insert Company Name] (the "Company") may obtain consumer reports about employees from a consumer reporting agency or agencies. The Company may use the reports in deciding whether to retain you, promote you, reassign you, or for other employment purposes. AUTHORIZATION I understand that the Company may not obtain consumer reports about me unless I authorize it to do so. I understand that failing to authorize the Company to obtain consumer reports about me may affect my continued or future employment. (Instructions to Employee: Check one box below.) I authorize the Company to obtain consumer reports about me. I do not authorize the Company to obtain consumer reports about me.

Date: _________________

Signature of Employee: __________________ Name - Please Print: ________________________

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VERCRUYSSE MURRAY & CALZONE, P.C. SAMPLE NOTICE OF INTENT TO OBTAIN AN INVESTIGATIVE CONSUMER REPORT [Letterhead] Date Applicant/Employee's Name Address RE: Notice of Request for Investigative Consumer Report

Dear ____________: This letter serves as notification that on [Insert date], the Company requested an investigative consumer report regarding you. An investigative consumer report is a consumer report for which the information is gathered through personal interviews of neighbors, friends, or associates of the employee or applicant reported on, or from other personal acquaintances or persons who may have knowledge about information bearing on the employee or applicant's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected for employment purposes. Enclosed is a summary of your rights under the federal Fair Credit Reporting Act, issued by the Federal Trade Commission. You also have a right to submit a written request that the Company disclose the complete and accurate nature and scope of the investigation requested. The Company will respond to your request within five (5) days of receiving it.

Very truly yours, ______________________ [Company Representative]

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VERCRUYSSE MURRAY & CALZONE, P.C.

A SUMMARY OF YOUR RIGHTS UNDER THE FAIR CREDIT REPORTING ACT The federal Fair Credit Reporting Act (FCRA) is designed to promote accuracy, fairness, and privacy of information in the files of every "consumer reporting agency" (CRA). Most CRAs are credit bureaus that gather and sell information about you -- such as if you pay your bills on time or have filed bankruptcy -- to creditors, employers, landlords, and other businesses. You can find the complete text of the FCRA, 15 U.S.C. 1681-1681u, at the Federal Trade Commission's web site (http://www.ftc.gov). The FCRA gives you specific rights, as outlined below. You may have additional rights under state law. You may contact a state or local consumer protection agency or a state attorney general to learn those rights. You must be told if information in your file has been used against you. Anyone who uses information from a CRA to take action against you -- such as denying an application for credit, insurance, or employment -- must tell you, and give you the name, address, and phone number of the CRA that provided the consumer report. You can find out what is in your file. At your request, a CRA must give you the information in your file, and a list of everyone who has requested it recently. There is no charge for the report if a person has taken action against you because of information supplied by the CRA, if you request the report within 60 days of receiving notice of the action. You also are entitled to one free report every twelve months upon request if you certify that (1) you are unemployed and plan to seek employment within 60 days, (2) you are on welfare, or (3) your report is inaccurate due to fraud. Otherwise, a CRA may charge you up to eight dollars. You can dispute inaccurate information with the CRA. If you tell a CRA that your file contains inaccurate information, the CRA must investigate the items (usually within 30 days) by presenting to its information source all relevant evidence you submit, unless your dispute is frivolous. The source must review your evidence and report its findings to the CRA. (The source also must advise national CRAs -- to which it has provided the data -- of any error.) The CRA must give you a written report of the investigation, and a copy of your report if the investigation results in any change. If the CRA's investigation does not resolve the dispute, you may add a brief statement to your file. The CRA must normally include a summary of your statement in future reports. If an item is deleted or a dispute statement is filed, you may ask that anyone who has recently received your report be notified of the change. Inaccurate information must be corrected or deleted. A CRA must remove or correct inaccurate or unverified information from its files, usually within 30 days after you dispute it. However, the CRA is not required to remove accurate data from your file unless it is outdated (as described below) or cannot be verified. If your dispute results in any change to your report, the CRA cannot reinsert into your file a disputed item unless the information source verifies its accuracy and completeness. In addition, the CRA must give you a written notice telling you it has reinserted the item. The notice must include the name, address and phone number of the information source.

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VERCRUYSSE MURRAY & CALZONE, P.C.

You can dispute inaccurate items with the source of the information. If you tell anyone -such as a creditor who reports to a CRA -- that you dispute an item, they may not then report the information to a CRA without including a notice of your dispute. In addition, once you've notified the source of the error in writing, it may not continue to report the information if it is, in fact, an error. Outdated information may not be reported. In most cases, a CRA may not report negative information that is more than seven years old; ten years for bankruptcies. Access to your file is limited. A CRA may provide information about you only to people with a need recognized by the FCRA -- usually to consider an application with a creditor, insurer, employer, landlord, or other business. Your consent is required for reports that are provided to employers, or reports that contain medical information. A CRA may not give out information about you to your employer, or prospective employer, without your written consent. A CRA may not report medical information about you to creditors, insurers, or employers without your permission. You may choose to exclude your name from CRA lists for unsolicited credit and insurance offers. Creditors and insurers may use file information as the basis for sending you unsolicited offers of credit or insurance. Such offers must include a toll-free phone number for you to call if you want your name and address removed from future lists. If you call, you must be kept off the lists for two years. If you request, complete, and return the CRA form provided for this purpose, you must be taken off the lists indefinitely. You may seek damages from violators. If a CRA, a user or (in some cases) a provider of CRA data, violates the FCRA, you may sue them in state or federal court.

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VERCRUYSSE MURRAY & CALZONE, P.C.

The FCRA gives several different federal agencies authority to enforce the FCRA:

FOR QUESTIONS OR CONCERNS REGARDING: CRAs, creditors and others not listed below PLEASE CONTACT: Federal Trade Commission Consumer Response Center - FCRA Washington, DC 20580 202-326-3761 Office of the Comptroller of the Currency Compliance Management, Mail Stop 6-6 Washington, DC 20219 800-613-6743 Federal Reserve Board Division of Consumer & Community Affairs Washington, DC 20551 202452-3693 Office of Thrift Supervision Consumer Programs Washington, DC 20552 800-842-6929 National Credit Union Administration 1775 Duke Street Alexandria, VA 22314 703-518-6360 Federal Deposit Insurance Corporation Division of Compliance & Consumer Affairs Washington, DC 20429 800-934-FDIC Department of Transportation Office of Financial Management Washington, DC 20290 202-7366-1306 Department of Agriculture Office of Deputy Administrator - GIPSA Washington, DC 20250 202-720-7051

National banks, federal branches/agencies of foreign banks (word "National" or initials "N.A." appear in or after bank's name) Federal Reserve System member banks (except national banks, and federal branches/agencies of foreign banks) Savings associations and federally chartered savings banks (word "Federal" or initials "F.S.B." appear in federal institution's name) Federal credit unions (words "Federal Credit Union" appear in institution's name) State-chartered banks that are not members of the Federal Reserve System

Air, surface, or rail common carriers regulated by former Civil Aeronautics Board or Interstate Commerce Commission Activities subject to the Packers and Stockyards Act, 1921

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VERCRUYSSE MURRAY & CALZONE, P.C. SAMPLE DISCLOSURE OF NATURE AND SCOPE OF INVESTIGATIVE CONSUMER REPORT [Letterhead] Date Applicant/Employee's Name Address RE: Disclosure of Nature and Scope of Investigative Consumer Report

Dear ____________: This letter responds to your request that the Company make a complete and accurate disclosure of the nature and scope of the investigative consumer report requested on [Insert date]. We received your request on [Insert date]. Also enclosed with this letter is a summary of your rights under the Fair Credit Reporting Act, in a form prescribed by the Federal Trade Commission. The investigative consumer report requested involved interviews with your [Identify the persons interviewed - neighbors, friends, associates, or others with whom the applicant is acquainted or who may have knowledge concerning the applicant's character, general reputation, personal characteristics, or mode of living]. The subject(s) of this investigation was/were [Identify the nature of the investigation - e.g., work performance, starting and ending dates, salary, attitude, honesty, compliance with policies and procedures, tendency toward violence, etc.]. The investigative consumer report was prepared by [Consumer Reporting Agency, Consumer Reporting Agency's address].

Very truly yours,

______________________ [Company Representative]

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VERCRUYSSE MURRAY & CALZONE, P.C. SAMPLE PRE-ADVERSE ACTION NOTICE

[Letterhead]

Date Applicant/Employee's Name Address Dear____________: Enclosed is a copy of a consumer report that was requested by the Company in connection with your [ select one - employment / application for employment]. Enclosed also is a summary of your rights provided under the Fair Credit Reporting Act. In the event that any portion of the report is inaccurate, please contact us promptly. Very truly yours,

[Company Representative]

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VERCRUYSSE MURRAY & CALZONE, P.C. SAMPLE ADVERSE ACTION NOTICE [Letterhead] Date Applicant/Employee's Name Address RE: Notice Of Adverse Employment Action

Dear _____________: [Describe adverse action taken] This action was taken [choose one - solely because of/or in part based on] information contained in the consumer report which you have previously received. [Insert name, address, and telephone numbers (including toll free number of the consumer reporting agency)] (the "Agency") furnished the consumer report. However, the Agency did not have any input with regard to the above-stated employment decision and cannot provide you with any information regarding why the action was taken. You may obtain another free copy of the consumer report from the Agency if you request a copy from it within sixty (60) days of receipt of this notice. You also have the right to dispute with the Agency, the accuracy or completeness of any information in the consumer report furnished by the Agency. Very truly yours,

_________________________ [Company Representative]

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VERCRUYSSE MURRAY & CALZONE, P.C.

APPLICANT Present Disclosure and Request Authorization (Addendum C) If Applicant Declines, Stop Process and Close File Investigative Consumer Report or If Authorization is Signed, Request

Consumer Report

Within 3 days of Request, Send: 1. Notice of Intent (Addendum E), and 2. Summary of Rights (Addendum F)

If Applicant Requests Additional Information, Prepare and Send Disclosure of Nature and Scope Within 5 Days (Addendum G) If Adverse Action is Contemplated, Send: 1. Pre Adverse Action Notice (Addendum H) 2. Consumer Report, and 3. Summary of Rights (Addendum F) WAIT (Usually 5 days) BEFORE TAKING ACTION If Adverse Action is Taken, Send Notice of Adverse Action (Addendum I)

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CURRENT EMPLOYEE Present Disclosure and Request Authorization (Addendum C) If Employee Declines to Sign, File Form File Authorization if Obtained

If a Consumer Report Is Required, Verify Authorization Has Been Obtained If Not, Obtain Authorization. (Addendum C) If Employee Will Not Sign, Contact Corporate Legal Department If Authorization Is or Has Been Obtained, Request

Investigative Consumer Report

or

Consumer Report

Within 3 days of Request, Send: 1. Notice of Intent (Addendum E), and 2. Summary of Rights (Addendum F) If Employee Requests Additional Information, Prepare and Send Disclosure of Nature and Scope Within 5 Days (Addendum G) If Adverse Action is Contemplated, Send: 1. Pre Adverse Action Notice (Addendum H) 2. Consumer Report, and 3. Summary of Rights (Addendum F) WAIT (Usually 5 days) BEFORE TAKING ACTION If Adverse Action is Taken, Send Notice of Adverse Action (Addendum I)

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VERCRUYSSE MURRAY & CALZONE, P.C. TABLE OF CONTENTS Page INTRODUCTION.................................................................................................................1 APPROPRIATE INTERVIEW PROTOCOL ........................................................................1 I. GENERAL CONSIDERATIONS..............................................................................1 A. Interviewing Don'ts - Prohibited Inquires ..............................................................1 B. More Interviewing Don'ts - "Neutral" Inquires .......................................................2 C. Interviewing Do's...................................................................................................3 II. INQUIRIES ABOUT WORKERS' COMPENSATION CLAIMS..........................3 III. IMMIGRATION-RELATED HIRING CONCERNS .............................................5 IV. HIRING CONSIDERATIONS UNDER THE AMERICANS WITH DISABILITIES ACT .........................................................................................................6 V. HIRING CONSIDERATIONS WITH MINORS .......................................................9 VI. THE SCREENING OF APPLICANTS ................................................................11 A. REFERENCES ....................................................................................................11 B. OVERVIEW OF EMPLOYMENT INQUIRIES UNDER THE FAIR CREDIT REPORTING ACT .......................................................................................................15 1. Amendments To The Fair Credit Reporting Act ...............................................15 2. Consumer Reporting Agencies .........................................................................15 3. Types Of Reports Covered ...............................................................................17 4. The Use Of Consumer Reports For Employment Purposes...............................17 a. General Reporting Responsibilities...............................................................17 b. Additional Procedures Required for Adverse Actions...................................18 iii. Step 2: Pre-Adverse Action Waiting Period .............................................19 iv. Step 3: Adverse Action Notice..................................................................20 c. Certification: ................................................................................................20 d. Reports Must be Used for Employment Purposes .........................................21 5. The Use Of Investigative Consumer Reports ....................................................21 6. Medical Information.........................................................................................22 7. Non-Compliance ..............................................................................................22 B. NEGLIGENT HIRING ....................................................................................22 D. CRIMINAL BACKGROUND CHECKS .........................................................32 PRE-EMPLOYMENT TESTING:.......................................................................................33 I. MEDICAL EXAMINATIONS AND INQUIRIES .................................................33 II. PSYCHOLOGICAL TESTING..............................................................................34 III. PRE-EMPLOYMENT TESTING AND THE AMERICANS WITH DISABILITIES ACT .......................................................................................................37 IV. DRUG TESTING.............................................................................................39 V. POLYGRAPH EXAMINATIONS .........................................................................43 B. Federal Law: Employer Polygraph Protection Act of 1988 ...............................44 USING THE EMPLOYMENT APPLICATION..................................................................46 I. GENERAL CONSIDERATIONS...........................................................................46 II. SHORTENING THE STATUTE OF LIMITATIONS ............................................46 III. PRESERVING THE AT-WILL RELATIONSHIP...........................................48 B. At-will Acknowledgement Forms.....................................................................48

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VERCRUYSSE MURRAY & CALZONE, P.C. C. Avoid Verbal Contracts....................................................................................49 D. Maintaining The At-will Relationship ..............................................................49 E. Handbook Receipt Acknowledgment ...............................................................51 F. Inclusion of Non-competition Agreements .......................................................51 IV. FALSIFICATION OF THE EMPLOYMENT APPLICATION........................51 G. Other After-Acquired Evidence Cases..............................................................53 ACCESS TO PERSONNEL FILES:....................................................................................54 I. RECORD KEEPING REQUIREMENTS ...............................................................54 II. THE BULLARD-PLAWECKI ACT ......................................................................55 A. What Is A Personnel Record?...........................................................................55 B. Use In Judicial Proceedings..............................................................................56 C. Review Of Personnel Record Upon Written Request ........................................56 D. Copying Information........................................................................................57 E. Removal Or Correction Of Information............................................................57 F. Disclosure Of Disciplinary Record...................................................................57 G. Review Of Information Prior To Release To Third Party..................................58 H. Keeping Record Of Non-employment Activities Is Prohibited..........................58 I. Record Of Investigation Of Criminal Activity ..................................................58 J. Right Of Access To Record Under Other Laws ................................................58 K. Penalty For Violations......................................................................................58 III. IMMIGRATION-RELATED RECORD KEEPING CONCERNS....................58 B. Practical suggestions ........................................................................................60 CHECKLIST FOR COMPLYING WITH THE FCRA WHEN USING A THIRD PARTY TO OBTAIN "CONSUMER REPORTS" ...........................................................................62 1. Certify your compliance with the FCRA.................................................................62 2. Provide written disclosure to and obtain written consent from the employee...........62 3. Notify the employee before adverse action is taken.................................................63 4. Notify the employee after adverse action is taken. ..................................................63 DISCLOSURE TO APPLICANT REGARDING CONSUMER REPORTS ........................65 DISCLOSURE TO EMPLOYEE REGARDING CONSUMER REPORTS.........................66 SAMPLE NOTICE OF INTENT TO OBTAIN AN INVESTIGATIVE CONSUMER REPORT .............................................................................................................................67 A SUMMARY OF YOUR RIGHTS UNDER THE FAIR CREDIT REPORTING ACT .....68 SAMPLE DISCLOSURE OF NATURE AND SCOPE OF INVESTIGATIVE CONSUMER REPORT .............................................................................................................................71 SAMPLE PRE-ADVERSE ACTION NOTICE...................................................................72 SAMPLE ADVERSE ACTION NOTICE ...........................................................................73 APPLICANT.......................................................................................................................74 CURRENT EMPLOYEE ....................................................................................................75

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