Misuse of Biometric Information Costs Corporations Millions

What do you need in your HR toolbox that Facebook, Google, United Airlines, Snapchat, and Shutterfly wish they would have had?  You may not know it yet, but a biometric information policy could be standing between you and millions of dollars in liability. 

Illinois passed the Biometric Information Privacy Act (BIPA) in 2008 to regulate the collection and use of biometric information.  Biometric information includes any personally unique physical characteristic used to identify an individual, including fingerprints, hand scans, and retinal scans.  BIPA permits an Illinois resident to sue any entity that collects his or her biometric information without following BIPA’s notice, disclosure, and consent provisions.  Washington and Texas have passed similar laws, and legislation in other states is on the horizon.

A grocery store chain and its timeclock manufacturer that used fingerprint-enabled time clocks without following BIPA’s disclosure and consent provisions are currently facing a lawsuit that could cost them up to $10 million in damages.  If you use or are considering using fingerprints, hand scans, or other biometric information to track or identify your employees, consult with myHRcounsel to ensure that you have an up-to-date, legally compliant policy that protects you and your employees.   

 

Remain Alert and Stay Diligent: Employer Shared Responsibility Provision Enforcement to Go into Effect by Late 2017

With all the confusion and ambiguity surrounding the current state of the ACA provisions and enforcement, one thing that seems to have remained consistent is the enforcement of the Individual and Employer Mandates.

Earlier this week, the IRS made revisions to their Employer Shared Responsibility FAQ that leave little doubt that enforcement of the Employer Mandate will move forward. https://www.jdsupra.com/legalnews/at-last-our-employer-mandate-tax-58247/

What Does This Mean for Employers?

For the 2015 calendar year, the IRS plans to issue Letter 226J informing Applicable Large Employers (ALEs, with 50 full time employees, including full-time equivalents)  of their potential liability for an employer shared responsibility payment, if any, in late 2017.  ALEs can expect to receive a letter (226J) from the IRS informing them of their potential responsibility payment. The enforcement will begin with year 2015, which is the first year the Employer Mandate was put into effect.

New California Laws Part 6- Anti-Harassment Training, Human Trafficking Notice, and Construction Contractor Liability

Anti-Harassment Training:

CA S.B. 396 will require employers with 50 or more employees to add to their two-hour supervisory training on sexual harassment already required to take place every two years.  Now, anti-harassment training must include “practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation,” and must be “presented by trainers or educators with knowledge and expertise” in these areas. 

The new law also requires employers with five or more employees to post a new workplace notice, to be developed by the Department of Fair Employment and Housing, regarding transgender rights.

Another new law, S.B. 295, requires that farm labor contractors comply with existing requirements to conduct sexual harassment training for certain employees by providing the training in the language understood by the employee.

How to Prepare

-Update sexual harassment training to include information regarding gender identity, gender expression, and sexual orientation.

-Post the DFEH new poster in the workplace by the first of the year (https://www.dfeh.ca.gov/

wp-content/uploads/sites/32/2017/08/DFEH_

TransgenderRightsWorkplace_ENG.pdf).

 

Human Trafficking Notice

CA A.B. 260 expands existing posting requirements regarding human trafficking and assistance hotlines to additional employers. The new law includes hotels, motels, and bed and breakfast inns, and S.B. 225 will require new language in the notice to state that person can text a specified number for services and support.

How to Prepare

-Ensure the notice is in place and incorporates the new language. 

 

Construction Contractor Liability:

CA A.B. 1701 applies to contracts entered into on or after January 1, 2018, and makes general contractors responsible for any payments owed to a wage claimant (or third party on a wage claimant’s behalf) by their subcontractors if the claimant’s work is a subject of the contractors’ relationship. Liability extends to unpaid wages, fringe or other benefit payments and contributions, including interest owed, but it does not extend to penalties or liquidated damages. The new law also requires subcontractors to provide payroll records to general contractors upon request. Finally, general contractors may establish remedies by contract for liabilities incurred on behalf of subcontractors.

How to Prepare

-General contractors should review agreements with subcontractors and include appropriate indemnification provisions. They should

-Discuss proper wage and benefit practices with subcontractors.

-Request to review subcontractors’ payroll records where wage compliance may be an issue.

New California Laws Part 5- Retaliation

Retaliation:

CA S.B. 306 expands certain employee retaliation and whistleblower claims. The law allows the Labor Commissioner to investigate an employer, with or without a complaint being filed, when it suspects the employer discharged or otherwise discriminated against an individual in violation of any law under the Labor Commissioner’s jurisdiction.

Under the new law, the Labor Commissioner or an employee may seek injunctive relief (meaning employee be reinstated pending resolution of claim) during the course of a wage claim or other investigation, upon mere finding of “reasonable cause” that a violation of the law has occurred.  

This diminishes the burden of proof for injunctive relief in retaliation or whistleblower cases under the Labor Commissioner’s jurisdiction, in part due to the “chilling effect on other employees asserting their rights under those laws” in determining if temporary injunctive relief or a permanent injunction is proper.

S.B. 306 does provide that any temporary relief does not restrain an employer from disciplining or terminating an employee for conduct unrelated to the retaliation claim. In practice, however, employees with performance issues who know that they are about to be terminated or disciplined may attempt to file retaliation claims internally or with state and federal agencies in order to protect themselves from adverse action.

The bill also authorizes the Labor Commissioner to issue citations directing the employer to cease the alleged violation and take actions necessary to remedy the violation, such as ordering reinstatement or back pay, placing the burden on the employer to challenge the citation through an administrative and court appeal. The law also requires any employer challenging the citation to post a bond with the Labor Commissioner’s office equal to the amount of back pay allegedly owed. 

How to Prepare

-Document, analyze, and make reasonable disciplinary decisions.

-Know that litigating retaliation and whistleblower claims under the Labor Commissioner’s jurisdiction, opposing petitions for injunctive relief related to these claims, and challenging citations will be more difficult under the new law.

New California Laws Part 4- New Parental Leave Act

New Parental Leave Act:

CA S.B. 63, amends the California Family Rights Act (“CFRA”) to allow employees who have at least 1,250 hours of service with the employer during the previous 12 months, to take 12 weeks of unpaid leave for new child bonding purposes, provided the employee works at a worksite that employs at least 20 employees within a 75-mile radius. The law applies to private and public employers. 

Covered employers may not refuse to allow an eligible employee to take up to 12 weeks of job-protected parental leave to bond with a new child within one year of the child’s birth, adoption or foster care placement. To be eligible, an employee must have 12 months of service with the employer, and at least 1,250 hours of service with the employer during the previous 12-month period. Note that the law only expands CFRA’s bonding leave provision -- it does not require employers with fewer than 50 employees to offer CFRA leave for other reasons.

Before the start of a parental leave, the employer must provide the employee with a guarantee of reinstatement to the same or comparable position following the leave. If both parents work for the same employer and are otherwise eligible for leave, the employer can require them to share the 12-week allotment between them.

Leave is unpaid, although employees may use accrued vacation, paid sick time, other accrued paid time off, or other paid or unpaid time off negotiated with the employer, and can apply for California Paid Family Leave benefits. Employers must maintain and pay for group health coverage during a parental leave at the level and under the conditions that coverage would have been provided had the employee continued working. The employer can recover coverage costs if the employee fails to return from leave after the leave entitlement period has expired and the failure to return is for a reason other than the continuation, recurrence, or onset of a serious health condition or other circumstances beyond the employee’s control.

The new law does not affect an employee’s right under California law to take up to four months of leave for pregnancy-related disability, in addition to the 12 weeks of parental leave. Also, the new law does not apply to employees who are already subject to the FMLA and CFRA.

How to Prepare

-Update employee handbooks and personnel policies, and create/update leave request forms and notices with respect to the new leave rights, reinstatement guarantee, and other requirements.

-Train human resource employees and managers about the new leave rights and obligations.

New California Laws Part 3- Ban the Box

Ban the Box:

California A.B. 1008 amends the Fair Employment and Housing Act (“FEHA”) and exempts from its coverage only a handful of positions: positions for which government agencies are required by law to check conviction history; positions with criminal justice agencies; farm labor contractors; and positions for which the employer is required by federal, state or local law to check criminal history or to restrict employment based on criminal history. The new law makes it an unlawful employment practice for employers with five or more employees to:

  • include on any application for employment, before the employer makes a conditional offer of employment to the applicant, any question that seeks the disclosure of an applicant’s conviction history;
  • inquire into or consider an applicant’s conviction history before the applicant receives a conditional offer of employment; and
  • consider, distribute, or disseminate information related to arrests that did not result in convictions, diversion program participation, and/or convictions that were sealed, dismissed, expunged or statutorily eradicated.

Employers may only consider an applicant’s conviction history after making a conditional offer of employment. If an employer intends to deny hire solely or in part because of conviction history, the employer must conduct an individualized assessment to determine whether that history has a direct and adverse relationship with the specific duties of the job. Moreover, when making the individualized assessment, the employer must consider the nature and gravity of the offense or conduct, the time that has passed since the date of the offense or conduct and completion of any sentence, and the nature of the position held or sought. Employers may, but are not required to, record the results of their individualized assessments in writing.

If the individualized assessment leads to a preliminary decision that the conviction history is disqualifying, the employer must then follow a specific procedure, sometimes referred to as a “fair chance” process, as follows:

  • First, the employer must provide written notice to the applicant. The written notice must identify the conviction on which the preliminary decision is based, include a copy of the conviction history report, if any, and explain the applicant’s right to respond to the notice within no less than five business days. The notice must also explain the applicant’s right to submit evidence challenging the accuracy of the conviction record, or evidence of rehabilitation, mitigating circumstances, or both. Employers are prohibited from making any final determinations based on conviction history during the minimum five day business period.
  • Second, if the applicant timely notifies the employer in writing that the applicant is disputing the conviction history and is taking steps to obtain evidence to do so, the employer must provide the applicant an additional five business days to respond. The employer must take into consideration any additional evidence the applicant provides in response before making a final decision. 

Finally, if after receiving the response from the applicant the employer makes a final decision to deny employment based on conviction history, the employer must again notify the applicant in writing. This final notification must include: the final denial; information about any existing procedure to challenge the decision or request reconsideration; and the right to file a complaint with the Department of Fair Employment and Housing. The employer has the option to include an explanation for making the final denial.

How to Prepare

-Remove questions which seek criminal conviction information from all hard copy and electronic employment applications.

-Review interview guidelines and hiring processes to ensure compliance with the law.

-Train managers, hiring, and recruiting personnel on new law so they know that they may not seek or rely on conviction history before a conditional offer of employment is made.

-Adopt procedures to comply with the individualized assessment and “fair chance” process requirements.

-Review and revise, as necessary, “adverse action” notifications to comply with federal and California fair credit reporting law requirements.

New California Laws Part 2- Immigration Enforcement

Immigration Enforcement

Unless otherwise required by federal law, California A.B. 450 will prohibit employers, and anyone acting on their behalf, from voluntarily consenting to an immigration enforcement agent entering any nonpublic areas of a workplace, unless the agent provides a judicial warrant. Employers can take an immigration agent to a nonpublic area to verify whether the agent has a judicial warrant, provided no employees are present in the area and no consent to search nonpublic areas is given in the process.

The new law also prohibits employers and anyone acting on their behalf from providing voluntary consent to an immigration enforcement agent to access, review, or obtain employee records without a subpoena or judicial warrant. This section of the law does not prohibit an employer from challenging the validity of a subpoena or judicial warrant in a federal court, nor does it apply to inspection of I-9 records or other documents for which the employer has received a Notice of Inspection.

The bill imposes several notification requirements on employers:

  • Within 72 hours of receiving a Notice of Inspection from an immigration agency to inspect I-9 forms or other employment records, the employer must post a workplace notice to employees and provide written notice to a collective bargaining representative. The Labor Commissioner will develop a template that employers can use for this purpose. Also, upon reasonable request, an employer must provide an affected employee a copy of an I-9 Notice of Inspection.
  • Within 72 hours of receiving an immigration agency notice that provides results of the I-9 or records inspection, an employer must provide each current affected employee and the collective bargaining representative a copy of the notice. Also the employer must provide to each “affected employee” and their representative written notice of the employer and employee’s obligations arising from the inspection results. An “affected employee” is one identified by the inspection results as lacking work authorization or whose work authorization documents have been identified by the agency inspection to have deficiencies. The notice must relate to the affected employee only and must be delivered by hand at the workplace if possible, or by mail and email if hand delivery is not possible.

Finally, employers may not reverify employment eligibility of a current employee at a time or in a manner not required by federal law. This law does not restrict an employer’s compliance with a memorandum of understanding regarding the use of E-Verify.

Violations of the various provisions of this new law are subject to civil penalty fines (in the $2,000-10,000 range, per violation!). 

How to Prepare

-Ensure that management knows the new law prohibiting them from granting voluntary access and understands proper procedures if immigration authorities visit or request an inspection.

-Prepare to promptly comply with the new posting and notice requirements for when you receive a Notice of Inspection or inspection results.

-Review I-9 processes to ensure that they are in full compliance with the law.

-Do not engage in reverification practices that are not strictly required by federal law.

New California Laws Part 1- Salary History

Salary history:

California A.B. 168 will bar employers from using or seeking job applicants’ salary history. The law prohibits all employers, public and private, from using “salary history information” as a factor in determining whether to offer employment and what salary to offer to an applicant. Salary history information includes information about salary, compensation, and benefits, but the bill does not apply to salary history information that is disclosable to the public pursuant to federal or state law, such as under the California Public Records Act.  The law further prohibits an employer from seeking salary history information from an applicant, orally or in writing, personally or through an agent (such as a manager or even a third party). The law also requires employers to provide the pay scale for a position upon an applicant’s reasonable request.

Technically, if an applicant voluntarily and without prompting discloses his or her salary history information to a prospective employer, the law doesn’t prevent the employer from considering or relying on that information to set the salary for that applicant, but the information still may not be used in determining whether or not to hire the individual. Still, it can be risky to rely on an applicant’s provision of information to consider salary history, as it could be difficult to demonstrate that the disclosure was in fact voluntary. Employers should also keep in mind that under the California Fair Pay Act, salary history alone cannot justify a gender or race disparity in compensation.  

How to Prepare

-Update/revise job applications and hiring forms to remove questions seeking salary history information.

-Update/revise applicable hiring/interviewing/screening policies, procedures, and guidelines, to clarify that you can’t request salary history and will not use salary history unless otherwise permitted by law.

-Establish procedures to ensure delivery of pay scale information upon an applicant’s request.

-Provide training to all personnel involved in the hiring process to ensure they understand the restrictions and obligations of the new law.

New York City passes paid leave for domestic violence victims

New York City passed a bill that will now provide leave to victims of domestic and sexual assault.  This bill expands upon New York City’s Earned Sick Time Act, which will allow workers five days off to use for court appearances, meeting with law enforcement, serving an order of protection, counseling, or moving away from the abuser.  This law is set to take effect 180 days after the bill was signed by Mayor Bill de Blasio.  Similar to sick time, an employer may require reasonable documentation that the use of the safe time was covered by the law, however the employer cannot require that the details of the family matter, assault, stalking or human trafficking.

For further assistance, contact us at myHRcounsel

How Does the New “Individualized Assessment” Law Impact CA Employers?

Effective January 1, 2018, California employers will be subject to new restrictions when considering criminal history in hiring decisions.  California has expanded its “ban the box” law and adopted a statewide “individualized assessment” requirement.  California employers will not be permitted to inquire about or consider an applicant’s criminal history until a conditional offer of employment has been made.  Once an offer has been made and criminal history has been obtained, an employer must perform an assessment to determine how the circumstances of the criminal history relate to the nature and duties of the desired position.  Before making a final decision to disqualify an applicant, an employer must give the applicant five business days to dispute the accuracy of the criminal history information and/or present evidence of rehabilitation or any additional information that would further explain or mitigate the criminal history information.  Consult with counsel if you have questions or concerns about the use of criminal history information in the hiring process.