December 2013

New law bans California employers from asking about dismissed criminal records

Effective January 1, 2014, SB 530, will ban most California employers from asking employees or applicants about arrests that did not result in conviction (except for arrests for which the individual is still awaiting trial) or about participation in a pretrial or post trial diversion program. Generally, the new law prohibits most employers from asking applicants to disclose, or use as a factor in employment decisions, any information concerning a conviction that has been judicially dismissed or ordered sealed.

|Employment Decisions, Legislation|

Stricter Volcker Rule final; banking entities have until July 21, 2015 to conform

On December 10, 2013, five federal agencies approved the regulation known as the Volker Rule which introduces a variety of guidelines to limit risk-taking by banks with federally insured deposits. The Federal Reserve Board announced that banking entities covered by section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act will be required to fully conform their activities and investments by July 21, 2015. The compliance requirements will vary based on the size of the entity and the scope of activities conducted.

The rule prohibits insured depository institutions and any company affiliated with an insured depository institution from engaging in short-term proprietary trading of certain securities, derivatives, and other financial instruments for the firm’s own account, subject to certain exemptions, including market making and risk-mitigating hedging. It also imposes limits on banking entities’ investments in, and other relationships with, hedge funds and private equity funds.

|Educational Series, Legislation|

Scrutiny of predictive scoring products is on the FTC’s agenda in 2014

According to the Federal Trade Commission (‘the “FTC”) and media reports, companies are using predictive scoring for a variety of purposes, ranging from identity verification and fraud prevention to marketing and advertising. The scores, are touted to predict, for example, the likelihood that a person has committed identity fraud or that a certain transaction will result in fraud; the credit risk associated with mortgage loan applications; whether contacting a consumer by mail or phone will lead to successful debt collection; or whether sending a catalog to a certain address will result in an in-store or online purchase.

Consumers are largely unaware of these scores, and have little or no access to the underlying data. As a result, predictive scoring products raise a variety of privacy concerns and questions that the FTC intends to explore. Among the issues, are what consumer protections exist or should be provided, and whether certain scores are considered eligibility determinants that fall under the ambit of the Fair Credit Reporting Act.

|Educational Series, Fraud|

New York joins in efforts to root out misclassification of independent contractors

On November 18, 2013, New York’s attorney general and the state labor department entered into agreements with the U.S. Department of Labor’s Wage and Hour Division to coordinate investigations, make referrals, share data and take other actions to combat worker misclassification. Fourteen other states (California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Montana, Utah and Washington) already participate in this national “misclassification initiative” that is a collaboration between the U.S. Department of Labor and the Internal Revenue Service.

An employer that misclassifies an employee as an independent contractor faces significant consequences that can include the payment of back taxes plus interest, overtime and state workers’ compensation, and the provision of health and welfare benefits.

|Educational Series|

E-Verify has new safeguard to combat identity theft

On November 18, 2013, the U.S. Citizenship and Immigration Services (the “USCIS”) announced a new E-Verify safeguard that enables USCIS to “lock” a Social Security number that appears to have been misused, protecting it from further misuse in the E-Verify process.

If an employee attempts to use a locked Social Security number, E-Verify will generate a “tentative non-confirmation” status. The employee will then have the opportunity to contest the result at a local Social Security Administration (‘SSA”) field office. If an SSA officer confirms that the employee’s identity matches the number, the non-confirmation will be converted to “employment authorized’” status.

|Employment Decisions|

Reminder to New Jersey employers to provide required CEPA notice

New Jersey employers with 10 or more employees are reminded of their annual obligation to provide to their employees, in both English and in Spanish, the required notice under the Conscientious Employee Protection Act (the “CEPA”). The notice may be distributed in hard copy or electronic format, but having only a poster or a policy in a handbook does not fulfill an employer’s notice obligation under the CEPA.

Enacted in 1986, this anti-retaliation statute is known as New Jersey’s Whistleblower’s Act. The goal of the CEPA is to encourage whistleblowers to report wrongdoing to their employers without fear of reprisals. Overall, CEPA provides a broader range of protections and remedies than other similar statutes, such as the federal False Claims Act.

|Educational Series, Employment Decisions, Legislation|

SEC’s whistleblower program gains momentum

On November 15, 2013, the SEC released its third annual Whistleblower Report to Congress. According to the report, In the fiscal year 2013, the SEC paid four major awards, one of which was for over $14 million for information leading to an enforcement action that recovered substantial investor funds. Three other payments totaling $832k were made for information regarding a bogus hedge fund.

The report states that the number of complaints and tips increased from 3,001 in the 2012 fiscal year to 3,238 in 2013. The three most common complaints or tips were about corporate disclosures and financials, offerings fraud, and manipulation. The number of FCPA-related tips also rose, from 115 to 149.

|Fraud|

From hair styles to criminal records, increased employment regulations to continue

Recent enforcement efforts by the Equal Employment Opportunity Commission (the “EEOC”) combined with some local and state “ban-the-box” laws are causing trepidation among employers who must not only consider, but also apparently hire, applicants with a criminal history and unprofessional hairstyles.

The EEOC recently filed a lawsuit in Alabama alleging that an insurance claims company violated Title VII of the Civil Rights Act by discriminating against an African-American applicant because she wore dreadlocks. The EEOC’s position is that the company’s policy of requiring a professional/business look “focuses on the racial bias that may occur when specific hair constructs and styles are singled out for different treatment because they do not conform to normative standards for other races.”

The EEOC has also pushed its position that considering criminal convictions in hiring decisions can be racially discriminatory, issuing its well-publicized guidance and filing lawsuits against employers that use background checks. Based on EEOC’s logic, Massachusetts and Hawaii already have adopted “ban the box” laws that apply to both private and public employers, and on January 1, 2014, similar measures will take effect in Rhode Island and Minnesota. The cities of Buffalo, NY, Newark, NJ, Seattle, WA, and Philadelphia, PA, also have passed similar legislation affecting private employers. Many more states and municipalities have “ban-the-box” laws that apply only to public employers. (Generally, “ban-the-box” legislation calls for the removal of the criminal history box/question on the job application, and prohibits employers from asking about criminal records in the initial application process.)

Win or lose, the EEOC is unlikely to let up, and the trend of increased employment regulations will continue into 2014, according to legal commentators. Employers should review their policies and procedures at least annually to ensure that they meet EEOC’s guidelines, comply with all federal, state and local laws and regulations, are fair and consistent and aligned with the business model.

|Employment Decisions, Judgment|

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