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SHRM Newsletter- Outside Counsel Not Credit Reporting Agency Subject to FCRA
Posted on Mar. 5, 2014

This is Utah SHRM Legal-mail no. 2014-4 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM). This

CONTENTS:

-  OUTSIDE COUNSEL NOT CREDIT REPORTING AGENCY SUBJECT TO FCRA

-  EEOC SHARPENS FOCUS ON MEDICAL LEAVE ISSUES

TEN WARNING SIGNS AN EMPLOYEE MAY BE ABOUT TO QUIT

-  UTAH LEGISLATIVE UPDATE

-  DAUGHTER’S FACEBOOK POST COSTS EMPLOYEE SETTLEMENT DOLLARS

OUTSIDE COUNSEL NOT CREDIT REPORTING AGENCY SUBJECT TO FCRA: From time-to-time, clients ask their outside legal counsel to gather court records or other background information about an employee or applicant. Does this constitute a third party background investigation covered by the federal Fair Credit Reporting Act (FCRA)? A District of Columbia federal court recently said no, such checks are not covered by the FCRA. The case involved an employer who hired outside legal counsel to do a post-employment background check on an employee on a leave who reportedly had been convicted of perjury. After the check, the employer terminated the employee’s employment because he had been less than candid regarding aspects of his background. The employee sued the employer and the lawyer for alleged violations of the FCRA. The court dismissed the case against the lawyer, ruling that he was the agent of the employer and was hired to provide an array of legal services, which sometimes included gathering background information such as what was at issue in the case. Thus, the court found that the involved lawyer was not a third party credit reporting agency covered by the FCRA.

EEOC SHARPENS FOCUS ON MEDICAL LEAVE ISSUES: Recent news reports and commentators have noted a sharpened focus by the Equal Employment Opportunity Commission (EEOC) on medical leave issues. According to the news reports, recent EEOC lawsuits have focused on issues such as maximum leave policies, full duty release requirements, invalid safety concerns and unsubstantiated employer claims of undue hardship in denying leave. Maximum leave policies put an employer at risk because they fail to consider situations on an individual, case-by-case basis as required by laws like the Americans With Disabilities Act (ADA). Full duty release rules, i.e. not allowing an employee to return to work until he/she can perform all duties or is fully-healed, raise problems because less-than-fully-healed employees may be able to perform essential job functions with accommodations. Safety concerns can be part of a valid ADA analysis, but they must not be generalized and instead should rise to the level of direct threats (i.e. a significant risk of substantial harm) and must be substantiated by medical evidence. Finally, if an employer claims it has an undue hardship that mandates denial of an accommodation such as leave, the EEOC may well make the employer prove it. You better be ready to do so with clear facts and documentation rather than by conjecture or speculation. EEOC regulations and guidelines say an undue hardship must be based on several factors, such as: (1) the nature and cost of the accommodation needed; (2) the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility; (3) the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity); (4) the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and (5) the impact of the accommodation on the operation of the facility.

TEN WARNING SIGNS AN EMPLOYEE MAY BE ABOUT TO QUIT: A recently-published Utah State University (USU) study has noted the top ten signs an employee may be about to quit his or her job. According to a recent article I read in the Salt Lake Tribune about the study, these signs are: “(1) They offer fewer constructive ideas in meetings; (2) They are more reluctant to commit to long-term projects: (3) They become more reserved and quiet; (4) They become less interested in advancing in the company; (5) They are less interested in pleasing their boss; (6) They avoid social interactions with their boss and other members of management: (7) They suggest fewer new ideas or innovative suggestions; (8) They skate by doing the minimum amount of work needed and no longer are motivated to go beyond the call of duty; (9) They are less interested in participating in training programs to improve themselves; and (10) Their work productivity goes down.” You can read the full article about this USU study here: http://www.sltrib.com/sltrib/money/57575457-79/signs-telltale-com-sltrib.html.csp

UTAH LEGISLATIVE UPDATE: The annual Utah legislative session ends on March 13, 2014. The Legislature briefly considered bills that would have raised the minimum wage or banned workplace sexual orientation discrimination or increased the remedies available under state law for victims of job bias. However, the Legislature did not enact any of these bills. The Legislature also considered, but did not pass, a bill that would have required any employer who requests a credit score on an employee (for purposes other than extending credit) to also give the employee a written notice within ten days of receiving the credit score. Thus, it appears that the 2014 session will end without any major legislative changes to Utah employment law.

DAUGHTER’S FACEBOOK POST COSTS EMPLOYEE SETTLEMENT DOLLARS: An employee’s daughter unfortunately cost her father $80,000 after she posted, on her Facebook page, information about her father’s settlement with a former employer. The settlement (id="mce_marker"0,000 in backpay; $80,000 on a 1099; and $60,000 in attorney fees) was subject to a confidentiality agreement. The daughter’s Facebook posting was proof, according to a recent decision by a Florida court, that the father/employee breached the confidentiality agreement by telling his daughter information about the settlement. The settlement agreement provided that the employee could not “directly or indirectly disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement.” Furthermore, the confidentiality requirement provided that the employee would have to disgorge the $80,000 payment if he violated the confidentiality provision. The daughter’s ill-advised Facebook post boasted that her parents had won their case against the employer and that the employer was now “going to pay” for her summer “European vacation.” Just guessing here, but I bet the daughter’s most recent Facebook post said something like: “Anyone have great ideas for a very short summer vacation really close to home?”

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mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

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Chambers 2011 Attorney

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Michael Patrick O'Brien
 

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012