Today's BLR Teleconference On Hidden Risks In Using Social Networking Internet Sites To Conduct Background Checks

I would like to thank everyone on today's BLR teleconference on the pitfalls on using social networking sites to conduct background checks on employees.  I hope everyone enjoyed the seminar.

As I promised, here are the five general caveats employers should follow when using social networking sites to conduct background checks on employees:
1. The employer and/or its agents conduct the background check themselves;
2. The site is readily accessible to the public;
3. The employer does not need to create a false alias to access the site;
4. The employer does not have to provide any false information to gain access to the site; and
5. The employer does not use the information learned from the site in a discriminatory manner or otherwise prohibited by law.
If any of the listeners to today's teleconference have any follow-up questions or comments, please feel free to email me

Legislative Update: Senate Passes Genetic Information Nondiscrimination Act

The United States Senate voted 95-0 to pass the Genetic Information Nondiscrimination Act yesterday. That bill, which President Bush is expected to sign, would bar insurers from asking or using genetic information to make a decision about coverage or to set premiums. Under the bill, insurers would be prohibited from raising premiums for a group because one or more members have genes that would predispose them to an illness. That provision is important for small employers that offer health coverage because a sudden increase in rates can lead to the cancelation of coverage altogether.

Equally significant for employers is the fact that the bill prohibits employers, unions and employment agencies from requesting or using genetic information for hiring, promotions, assignments or firing. According to Sharon Terry, president of the Genetic Alliance, “genetics will be protected just like race, religion and gender.” Senator Snow (R-Maine) agreed stating that “we are on the threshold of a new era, because for the first time we act to prevent discrimination before it takes hold. We are taking a stand that, as we look to the future, genetic discrimination will not be allowed to flourish, to take root.” For more information on this bill click here.

"Unequal Pay" Bill Blocked In U.S. Senate

The Senate recently failed to break a Republican-led filibuster currently blocking the Fair Pay Restoration Act. The Fair Pay Act would make it easier for people to sue over pay discrimination and is in response to the 2007 Supreme Court ruling that limited such cases. In that case, the Supreme Court ruled that unequal pay claims must be filed within 180 days of the first discriminatory paycheck instead of when the employee discovers the discrepancy. The deadline is specified in Equal Opportunity Commission guidelines and it "protects employers from the burden of defending claims arising from employment decisions long past" Justice Samuel Alito wrote for the majority in the 5-4 decision.

The bill currently under consideration would have "reset the clock" with every paycheck. In support of this provision, advocates argue that each paycheck is a discriminatory act while opponents contend that the provision was unworkable. For example, the bill -- as currently drafted -- would arguably allow retirees drawing pensions to sue their old companies over allegations of discrimination that occurred several years ago.

Opponents further assert that allowing employees to assert claims going that far back will lead to evidentiary problems because evidence supporting decade-old claims will likely be difficult to obtain.

Although the bill is stalled now, supporters promise to continue their efforts even though President Bush is likely to veto the bill should it pass both the House and Senate. For more information on why the supporters of the Fair Pay Act believe it is necessary, click here. Click here for additional reasons opponents believe the bill is unnecessary.

Upon An Employee's Request, Which Documents Does An Employer Have To Show And/or Copy?

Employers are obligated only to provide copies of any documents signed by the employee or applicant relating to their job. Labor Code section 432.

Employees are allowed to inspect other categories of documents. For example, Labor Code Section 1198.5 requires employers allow employees and former employees access to their personnel files and records that relate to the employee’s performance or to any grievance concerning the employee. Inspections must be allowed at reasonable times and intervals. To facilitate the inspection, employers must do one of the following: (1) keep a copy of each employee’s personnel records at the place where the employee reports to work, (2) make the personnel records available at the place where the employee reports to work within a reasonable amount of time following the employee’s request, or (3) permit the employee to inspect the records at the location where they are stored with no loss of compensation to the employee.

Employers are required to permit current and former employees to inspect or copy payroll records pertaining to that current or former employee. Labor Code Section 226(b). Starting on January 1, 2003, an employer who receives a written or oral request from a current or former employee to inspect or copy his or her payroll records shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request. Failure to comply with the request entitles the employee to a $750 civil fine. Labor Code Section 226, subdivisions (c) and (f)

There are limits to the documents that an applicant or employee can inspect from his or her file. The employee does not have the right to inspect records relating to the investigation of a possible criminal offense, letters of reference, or ratings, reports, or records that (a) were obtained prior to the employee’s employment, (b) were prepared by identifiable examination committee members, or (c) were obtained in connection with a promotional exam.

Speaking Next Week On Pitfalls When Using The Internet To Conduct Background Searches For Applicants

Posted by Anthony Zaller

I will be speaking again next week on the pitfalls employers encounter when using the Internet, MySpace.com, Facebook.com, and similar social networking sites to check out the backgrounds of job applicants and employees.  If you are interested, more information about the seminar can be found here.

While I thought this topic was interesting, I had no idea that so many people would also find it interesting.  I was recently quoted in Financial Week and have had many other inquires about the topic.

Bill Requiring Paid Sick Days For Employees Takes One Step Closer To Becoming Law

The Assembly Labor and Employment Committee passed the Healthy Families, Healthy Workplaces Act today by a vote of 6-2.

The bill, introduced by Assemblywoman Fiona Ma (D-San Francisco) in February, AB 2716, would allow workers to earn paid sick days that can be used to recover from illness, care for a sick family member, or recover from domestic violence or sexual assault.

The next step for the bill is the Assembly Judiciary Committee on Tuesday, April 15.  If passed by the legislature and signed into law, California would be the first state in the nation to require employers to provide paid sick days.  Click here for a prior post discussing the implications of AB 2716 on California employers