Jottings By An Employer's Lawyer

Tuesday, December 17, 2013

Next Year's Headache for Employers

Not to ruin the Christmas season, but when you get through the holidays and start focusing again on looming legal issues, you might want to read this article, Lawsuit Raises FCRA Fears, by Kristen Fratsch in Human Resource Executive On Line.

The basis for the lawsuit is a class action suit against Disney, based on alleged failure to notify an applicant that he was not being hired because of a criminal conviction that showed up on a background check. According to the plaintiff's side of the story, the assault occurred when he was 19, was expunged from his record and the credit reporting agency ultimately removed it. Disney has not answered, so it may well have complied with the Fair Credit Reporting Act.

However, according to Fratsch since 2010 there have been been 368 class action lawsuits filed under the FRCA.

In employment law, most  litigation has traditionally involved termination of employment. Which makes sense because in those cases an employee at one time got the job, performed for some period of time, and the employer had to make a conscious decision and carry it out appropriately. Plus, the employee has a vested interest based on his investment in time with his ex-employer and a track record of earnings that will support a damage claim. Not to mention the emotional involvement that comes out of being terminated.

By contrast, hiring claims are not as economically viable. There are lots of applicants for most positions and courts are reluctant to second guess hiring decisions if it seems to be a reasonable choice. Plus applicants generally don't know why they weren't hired, and don't have the emotional level of investment they have when someone has terminated them, plus damages are problematic.

But when you throw in the possibility of a class recovery, with the dollar signs that inevitably follow class litigation, now you have an incentive, not so much for individual employees, but for law firms that focus on class or collective action based employment litigation.

So, for now enjoy the holidays, but in the not too distant future, remind yourself of an employer's obligations under the FCRA and make sure that you are in compliance.

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Thursday, December 05, 2013

Keyboard Filing - Being a Whistleblower Just Got a Lot Easier

It will be interesting to see what the response is to today's announcement by the Department of Labor that complaints under any of the 22 federal whistleblowing statutes that OSHA enforces may now be filed on line.

Here's the gist of the DOL press release:

Whistleblowers can now file complaints online with OSHA
Agency launches online form to provide workers a new way to file retaliation complaints

WASHINGTON – Whistleblowers covered by one of 22 statutes administered by the U.S. Department of Labor’s Occupational Safety and Health Administration will now be able to file complaints online. The online form will provide workers who have been retaliated against an additional way to reach out for OSHA assistance online. 
Currently, workers can make complaints to OSHA by filing a written complaint or by calling the agency’s 1-800-321-OSHA (6742) number or an OSHA regional or area office. Workers will now be able to electronically submit a whistleblower complaint to OSHA by visiting

The new online form prompts the worker to include basic whistleblower complaint information so they can be easily contacted for follow-up. Complaints are automatically routed to the appropriate regional whistleblower investigators. In addition, the complaint form can also be downloaded and submitted to the agency in hard-copy format by fax, mail or hand-delivery. The paper version is identical to the electronic version and requests the same information necessary to initiate a whistleblower investigation.

Unlike some other government websites that have been in the news recently, this one at least opens.

If you are now curious about the form, click here.

It will be interesting to see how quickly individuals learn of this availability and what happens with the number of complaints. The discrimination/retaliation section is unusual because the individual does not have to designate which statute the complaint is filed under, nor is there any description of what the 22 laws cover.

On the information you are suggested to read before completing the form, OSHA says what is going to happen when the complaint is submitted:

Upon receipt of a complaint, OSHA will contact the complainant to determine whether to conduct an investigation. It is very important that a complainant respond to such contact; if a complainant is unresponsive, OSHA cannot proceed with an investigation and the complaint will be dismissed. If OSHA proceeds with an investigation, the complainant will have an opportunity to offer documents and other evidence in support of the complaint, and the employer will be notified of the allegation and permitted to submit a response.
 OSHA does include this admonition:
The announced intention is that everyone who submits a form will be contacted by OSHA.

This is going to be interesting; for employers, not necessarily in a good way.

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