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Know Your Rights Under the Fair Credit Reporting Act

Fair Credit Reporting Act and Employee Background Checks

Employer violations of the Fair Credit Reporting Act are on the rise, leading to an increase in class action lawsuits. The most common issue leading to class action lawsuits is the manner in which employers obtained and used consumer reports about job applicants, to include credit reports and criminal background checks.fair credit reporting act

The Fair Credit Reporting Act, or FCRA, requires employers to (1) disclose to applicants, in a document containing only the disclosure, that the employer may request a consumer report about the applicants and (2) obtain applicants’ authorization to request the consumer report. Both of these steps must be completed before a consumer report is obtained. Employers are permitted to combine the disclosure and the authorization into one form, but some employers include additional information in their disclosures and authorizations, such as explanations of at-will employment, explanations of privacy policies, and requests for additional information about an applicant that arguably is unrelated to the request for consumer reports. It is the inclusion of this additional information, and the omission of the term “consumer report” from those documents, that has resulted in recent class action lawsuits. 

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President Obama’s Executive Order bars LGBT discrimination by federal contractors

LGBT discriminationOn July 21, 2014, President Obama approved and signed an Executive Order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity — in other words, specifically protecting individuals from LGBT discrimination. “We’re on the right side of history,” Obama said at a press conference. “America’s federal contractors should not subsidize discrimination against the American people.”

Executive Orders - LGBT discrimination

Two executive orders already protected federal employees on the basis of sexual orientation. Executive Order 11246, Equal Employment Opportunity (1965), signed by President Lyndon B Johnson, barred discrimination by federal contractors on the grounds of race and sex. The second, Executive Order 11478, Equal Employment Opportunity in the Federal Government (1969), signed by Richard Nixon, barred discrimination by the government itself. The amendments put into action by President Obama bar discrimination against transgender federal employees, and add people who identify as LGBT to a list of those against whom federal contractors cannot discriminate. The Order went into effect immediately after signing.

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Employee Reimbursement When Using Personal Cell Phone for Work

Employee Reimbursement When Using Personal Cell Phone for Work Read More

Background on a case concerning employee reimbursement

Colin Cochran (plaintiff) filed a putative class action against Schwan’s Home Service, Inc. (Home Service) on behalf of customer service managers who were not reimbursed for expenses pertaining to the work-related use of their personal cell phones. He alleged causes of action for violation of section 2802; unfair business practices under Business and Professions Code section 17200 et seq.; declaratory relief; and statutory penalties under section 2699, the Private Attorneys-General Act of 2004. He moved to certify the class. Home Service filed an opposition as well as a motion to deny certification. On October 24, 2012, the trial court held a hearing.

The trial court denied class certification on the grounds that “many people now have unlimited data plans for which they do not actually incur an additional expense when they use their cell phone,” and therefore concluded that individual questions of liability would predominate, rendering class certification improper. The trial court stated: “[Cochran] has not demonstrated how the cell phone plans and method of payment exhibited by a portion of the class will accurately reflect the plans and method of payment for the entire class.

California Labor Code Section 2802

Pursuant to section 2802, subdivision (a), “[a]n employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer[.]” The purpose of this statute is “‘to prevent employers from passing their operating expenses on to their employees.’” (Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 562 (Gattuso) [quoting legislative history from the 2000 amendment to the statute].) “In calculating the reimbursement amount due under section 2802, the employer may consider not only the actual expenses that the employee incurred, but also whether each of those expenses was ‘necessary,’ which in turn depends on the reasonableness of the employee’s choices. [Citation.]” (Gattuso, supra, 42 Cal.4th at p. 568.)

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Fair Chance Ordinance or “Ban the Box” Takes Effect August 13, 2014

As detailed in our post earlier this year, Fair Chance Ordinance (FCO) to Help Prevent Discrimination, San Francisco’s posting, reporting and inquiry rules for applicants’ and employees’ criminal histories takes effect on August 13, 2014.

fair chance ordinanceSan Francisco Mayor Edwin M. Lee signed San Francisco’s Fair Chance Ordinance on February, 14, 2014 with the intent of preventing discrimination based on criminal history. Many employers ask job applicants to check a “box” on a job application to disclose criminal history information. As of August 13th, the ordinance applies to private and
public employers and it “bans the box” on employment applications and restricts private employers’ ability to use criminal history information. In an effort to prevent discrimination, the new ordinance bars most employers and housing providers from (1) asking applicants to disclose their criminal background in the application process, and (2) using criminal background history or records in the employment or housing selection process. In addition, the FCO imposes new posting, notice, disclosure and recordkeeping requirements that take effect on August 13, 2014.

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Crackdown on Federal Contractors with Labor Violations

Crackdown on Federal Contractors with Labor Violations Read More

Last week, President Obama
signed the Fair Pay and Safe Workplaces Executive Order that requires contractors to (1) disclose recent violations of various workplace laws before being awarded federal contracts; (2) provide wage notifications to employees and notify independent contractors of their non-employee status; and (3) barring contractors from requiring employees to sign pre-dispute arbitration agreements. The Executive Order will be implemented on all covered contracts in stages on a “prioritized basis” starting in 2016. 

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A Challenge to Independent Contractor Status Is Class Certifiable

California Supreme Court Holds That a Challenge to Independent Contractor Status Is Class Certifiable

In Ayala v. Antelope Valley Newspapers independent contractor and California law, Kingsley & Kingsley, Encino, CAthe California Supreme Court held that the critical factor in determining whether a worker is an employee or an independent contractor is “the degree of a hirer’s right to control how the end result is achieved.”  Even if that right is not exercised, the hirer will be deemed the employer of the worker and will be subject to all California laws governing employment relationships.  The Supreme Court also held that with respect to class certification, the issue is whether there is a common way to show the employer “possessed essentially the same legal right of control” with each plaintiff.


Antelope Valley (defendant) circulates the Antelope Valley Press daily to subscribers throughout Los Angeles and Kern Counties. To distribute the paper, Antelope Valley operates distribution facilities in both counties and contracts with individual carriers using a preprinted standard form contract, “Independent Contractor Distribution Agreement”. The four plaintiffs are/were newspaper carriers for Antelope Valley and are collectively referred to as “Ayala”.

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Does IRCA preempt application of California FEHA?

Does IRCA preempt application of California FEHA? Read More

California FEHA

A June 26th California Supreme Court decision holds that an undocumented worker who was wrongfully terminated in violation of the California Fair Employment and Housing Act (FEHA) may be awarded lost pay damages, even if the employee was ineligible for employment to begin with under federal law.


The plaintiff, Vicente Salas, was a seasonal production line employee with Sierra Chemical, a company that manufactures, packages, and distributes chemicals for treating water, including water in swimming pools. He injured his back while stacking crates on the production line and claimed he needed to change his work routine while he was recovering. Salas filed a workers’ compensation claim for his injury, but his employer told him that he could only return to work after he obtained a doctor’s release.

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EEOC Issues New Guidance Regarding Pregnancy Discrimination

EEOC Issues New Guidance Regarding Pregnancy Discrimination Read More

New EEOC Guidance Clarifies Protections for Pregnant Employees and Fathers
- Pregnancy Discrimination

The updated enforcement guidance begins by restating statutory requirements under the Pregnancy Discrimination Act (PDA)–that an employer cannot discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and that female employees affected by pregnancy, childbirth or related medical conditions must be treated the same as other employees who are similarly situated in their ability or inability to work. Following an overview of the PDA, the U.S. Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance on Pregnancy Discrimination and Related Issues is divided into four parts:

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