There are a number of recent developments of which you should be aware and that have been generating a variety of questions:

NEW NLRB PROHIBITIONS REGARDING EMPLOYER POLICIES

Many of you have heard about the National Labor Relations Board’s (“NLRB”) recent actions involving employer social media policies, investigations of employee misconduct, at-will employment policies, and confidentiality rules.  The NLRB has determined that certain specific policies violate an employee’s right to engage in protected concerted activity for mutual aid and protection under Section 7 of the National Labor Relations Act (“NLRA”).  As a result, employers should review their written policies and change procedures to conform to the NLRB’s holdings.

1. Social Media Policies:  In May 2012, the NLRB’s General Counsel issued his third report on social media policies setting out what the NLRB considers to be unlawful.  To comply with the law, EMPLOYERS MAY NOT PROHIBIT:

• disclosure of “non-public” or “confidential” information without narrowly defining what these terms mean,
• posting photographs or personal information about other employees without employer permission,
• employee contact with media and government representatives,
• posting “inappropriate” or “disrespectful” comments,
• “friending” of coworkers.

The NLRB found the Social Media policy of Wal-Mart acceptable.  This policy included warnings to employees such as, “You are solely responsible for what you post online,” and, “Before creating online content, consider some of the risks and rewards that are involved.  Keep in mind that any of your conduct that adversely affects your job performance, . . . may result in disciplinary action up to and including termination.”  The NLRB found that the examples of prohibited conduct cited in the policy would keep employees from reading the rules as prohibiting protected Section 7 activity.  (Wal-Mart Policy, EXH. 1)

2. Confidentiality Policies:  In June 2012, the NLRB’s General Counsel determined that a hotel’s confidentiality policy prohibiting unauthorized disclosure of  any confidential company information including “training materials,” “personnel information,” and “any confidential information about” the hotel, its clients, or trade secrets was a violation of Section 7 because employees could reasonably view these restrictions as prohibiting, or at least chilling, the discussion of employee pay, hours, promotions, benefits, or other terms and conditions of employment. 

3. Confidentiality of Employer Investigations:  In August of 2012, the NLRB concluded that an employer cannot have a blanket rule prohibiting employees from discussing ongoing investigations of employee misconduct unless the employer can establish a specific legitimate business justification for the rule. In this case, the employer’s internal complaint form stated that the employee submitting the form should not discuss the complaint with coworkers during the investigation of the complaint.  The NLRB found the proscription overbroad and unwarranted where there was no need to protect witnesses, prevent spoliation of evidence or induce a cover-up.

The Equal Employment Opportunity Commission may follow suit.  In a letter from an EEOC field office, one employer was warned that prohibiting workers from discussing an ongoing harassment investigation violated Title VII (the Civil Rights Act). 

Given the scrutiny being placed on policies, employers must carefully balance their need to protect the integrity of an internal investigation with an employees’ right to engage in protected concerted activity.

4. At-will Employment:  An NLRB administrative law judge held that the Red Cross’s handbook statement that all employment was “at-will” and that this status could not be “amended, modified, or altered in any way” was a violation of the NLRA because it could reasonably be interpreted as a restriction on employees’ rights to engage in collective bargaining and to alter their at-will status through collective bargaining.  A handbook statement that “All employment is at ‘will.’” was not found to violate the NLRA.

The issues noted above impact both union and non union companies and, while these recent matters reflect the NLRB’s increasing concern involving policies that chill union organizational campaigns, none of these issues have yet been subject to court review.  It is possible that the NLRB’s expansive efforts may not be enforced or that further changes in these areas may arise.

 
NEW REQUIREMENTS IN MASSACHUSETTS ON CRIMINAL OFFENDER RECORD INFORMATION

The CORI Reform Law, passed in 2010, is now in full force and effect.  It imposes new obligations on employers who conduct 5 or more criminal background checks a year. Employers must comply with the following:

1. “Ban the Box” and Requests for Conviction Information During Employment Application Process:  Questions relating to a criminal record must not be  asked on an initial Employment Application. Employers may, however, request criminal conviction information from applicants during or after an employment interview.  Employers may not require an applicant to provide a copy of his/her criminal offender history.

Exceptions:  The employer may ask about criminal convictions on the Employment Application if:
A. Federal or state laws or regulations create a disqualification based on a conviction, or
B. Federal or state laws or regulations require employers not to hire applicants who have been convicted of certain offenses.

2. Employer Criminal Offender Record Information Requests:  Employers may apply to the Department of Criminal Justice Information Services (DCJIS) to receive CORI information involving Massachusetts criminal records.  Such records should be sought on a non-discriminatory basis.  If CORI information is sought on one applicant for a position, it should be sought on all applicants for the same position.  Consumer Reporting Agencies (CRA) may also request such records for employers.  Employers seeking iCORI computerized database information directly or through a CRA must register with the DCJIS on a yearly basis.  To register, access the application at http://www.mass.gov/eopss/agencies/dcjis.  Web based training in use of the iCORI is required.

3. Employer obligations for use of iCORI:

A. Receive a completed CORI authorization form from each applicant or employee.  DCJIS has a model form available on its website.  (Authorization Form, EXH. 2) Once signed, the authorization remains in force for one year. If the employer uses the form a second time during the year, the applicant/employee must be notified.

B. Provide written notice of the company’s CORI policy to applicants/employees. 
(Sample Policy, EXH. 3)

C. Provide the applicant with the documentation received from CORI and written notice of how to correct mistakes in those documents prior to questioning the applicant about his/her record or prior to finalizing a negative employment decision based on CORI information.  (Sample Notice of Rights, EXH. 4)  See attached notice on the process of correction.  (Information, EXH. 5)

4. Employers Using Consumer Reporting Agencies:  Employers using Consumer Reporting Agencies (“CRA”) instead of direct queries to CORI should follow many of the steps outlined above.  They should:

A. Have applicants complete and sign a FCRA Authorization form that references criminal background checks.  (Authorization Form, EXH. 6)
B. Provide applicants with copy of Employer’s CORI policy.
C. If an adverse employment action is contemplated based on the CORI information, provide the CORI information to the applicant with notice of how to change incorrect information. 
D. Provide the applicant with opportunity to dispute or correct CORI information received by employer.

5. Record Confidentiality and Retention:  CORI records are considered confidential information and must be retained in a locked file. Dissemination should only be on a “need to know” basis.  Dissemination of the information on each CORI report beyond the company requesting the information must be recorded in a log that includes the name of the individual and entity receiving the report, the reason for access and date of access.

Information received through CORI must be destroyed 7 years after the applicant leaves employment with the company or within 7 years of the employer’s making a negative employment decision regarding the applicant.

6. Information Available Through iCORI:

• All murder, manslaughter and sex offense convictions.
• Felony convictions occurring within last 10 years from later of final order or release from incarceration.
• Misdemeanor convictions within 5 years from later of final order or release from incarceration.
• Criminal charges pending on date of CORI request.

 
7. Safe Harbor Benefit:

A. An employer that utilizes and relies on CORI in making an employment decision  within ninety days of obtaining that CORI information and that has followed the procedures outlined above, will not be liable for negligent hiring claims based on insufficient or incorrect information on the employee.

B. Employers will not be liable for failing to hire an applicant on the basis of a CORI report containing erroneous information, if the employer would not have been liable if the information had been accurate.

8. Audits to Insure Compliance and Penalties:  The DCJIS may audit employers to insure compliance.  Employers violate the CORI law by, but not limited to:
• Violations of the requirements set out above,
• Requesting CORI information under false pretenses,
• Failing to maintain the confidentiality of CORI information,
• Falsifying criminal record information,
• Requesting an individual to provide a copy of his/her own criminal record (except as authorized by law).

Fines for violations of the law may range from $5,000 for an individual’s offense up to $50,000 for a business.  Individuals have a private right of action enabling them to receive actual damages, attorney’s fees and costs.  If the violation is willful, the individual may also receive exemplary damages of $100 - $1,000.

9. Discrimination as an Issue:  No federal or state law prohibits employers from making hiring decisions, or other adverse employment decisions, on the basis of criminal history.  But, where an employer’s employment decisions demonstrate a disparate impact on a protected classification those decisions may help to prove discrimination in violation of both state and federal laws.  For example, refusal to hire a minority because of a criminal conviction when a non-minority was hired for the same position with a similar conviction would be discriminatory.  Failure to hire individuals with convictions unrelated to the available position or the context in which it is to be performed could also create an issue of disparate impact discrimination.  In an April of 2012 EEOC Guidance on its position on the use of criminal records in making employment decisions, EEOC stated,

     A violation (of various discrimination related laws) may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).

     An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).

These concerns should be kept in mind when making decisions solely on the basis of criminal history.

CHANGE IN FAIR CREDIT REPORTING ACT DISCLOSURES

Congress has amended the FCRA with respect to credit scores.  The change in effect as of July 21, 2012, impacts disclosures an employer must make if it takes an adverse action against an applicant or employee based in whole or in part on the results of a “consumer report.”  Consumer reports include a variety of background checks, e.g., checks of credit, driving history, and criminal records.  When an employer takes adverse action against an employee or prospective employee based in whole or in part on the results of a consumer report, the employer must provide the individual with oral, written or electronic notice of the following:
(1)  The adverse action;
(2)  The consumer reporting agency’s (“CRA”) contact information;
(3)  Notice that the CRA did not make the decision and cannot provide the individual with the bases for the decision;
(4)  The individual’s right to obtain a free copy of the CRA’s report; and
(5)  The individual’s right to dispute with the CRA the information in the consumer report.

According to the revised law, if an employer takes an adverse action against an employee or prospective employee based on the individual’s numerical credit score, in addition to the disclosures required above, the employer must provide the individual with additional written or electronic notice of:
(1)  The numerical credit score the employer used when taking the adverse action;
(2)  The range of possible credit scores under the credit scoring model used;
(3)  The date on which the credit score was created;
(4)  The name of the person or entity that provided the credit score or the credit file used to create the credit score; and
(5)  The key factors, listed in order of importance, which adversely affected the consumer’s credit score in the credit score model used.

These additional disclosure requirements only apply if the employer makes the adverse employment decision based in whole or in part on the individual’s numerical credit score.

Henceforth, if an employer relies on such data when taking adverse action, it must provide the disclosures mandated by the amended Fair Credit Reporting Act that appear above.

DISTRACTED DRIVING RULES

 Many employers have become concerned with the issue of employees making and receiving telephone calls and text messages while on the road.  If an employee is in a vehicle accident while working for his/her employer, the employer is usually liable.  In order to best protect your company, develop and implement a Distracted Driver Policy.  Be certain to have employees sign off on your chosen policy.  A model policy as well as an alternative to that policy is attached as  Exhibit 7.

If you have any questions, please do not hesitate to contact us.

This client alert, which may be considered advertising under the ethical rules of certain jurisdictions, should not be construed as legal advice or a legal opinion on any specific facts or circumstances by Stoneman, Chandler & Miller LLP and its attorneys. This client alert is intended for general information purposes only and you should consult a Stoneman, Chandler & Miller LLP attorney concerning any specific legal questions you may have.  © 2012 Stoneman, Chandler & Miller LLP