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2020 Newsletters

These Newsletters are not intended as legal advice since each situation depends specifically on the facts presented. Persons reading these Newsletters should seek competent legal advice with regard to the subjects contained herein before making any employment or other decisions.
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NOVEMBER 2020

Inside This Issue

1. The Ninth Circuit Court of Appeals Issues Two Important Decisions under Fair Credit Reporting Act (FCRA)

2.   NLRB Establishes Standards for Mail-In versus Manual Ballot during Elections

3.   Should I Require My Employees to get the COVID-19 Vaccination?

4.   Illinois Human Rights Act Was Amended to Provide Mandatory Employer Training

5.   NLRB Invites Public Comment on Whether to Band Scabby the Rat

The Ninth Circuit Court of Appeals Issues Two Important Decisions under Fair Credit Reporting Act (FCRA)

In Walker v. Fred Meyer, Inc. the 9th Circuit Court of Appeals reviewed Meyer’s disclosure and acknowledgment forms. The disclosure form stated:

We ([t]he Kroger family of companies) will obtain one or more
consumer reports or investigative consumer reports (or both)
about you for employment purposes.
These purposes may include hiring, contract, assignment,
promotion, reassignment, and termination. The reports will
include information about your character, general reputation,
personal characteristics, and mode of living.
We will obtain these reports through a consumer reporting
agency. The consumer reporting agency is General
Information Services, Inc. GIS's address is P.O. Box 353,
Chapin, SC 29036. GIS's telephone number is
(866) 265-4917. GIS's website is at www.geninfo.com.
To prepare the reports, GIS may investigate your education,
work history, professional licenses and credentials, references,
address history, social security number validity, right to work,
criminal record, lawsuits, driving record and any other
information with public or private information sources.
You may inspect GIS's files about you (in person, by mail, or
by phone) by providing identification to GIS. If you do, GIS will
provide you help to understand the files, including communication
with trained personnel and an explanation of any codes. Another
person may accompany you by providing identification.
If GIS obtains any information by interview, you have the right to
obtain a complete and accurate disclosure of the scope and
nature of the investigation performed.

The disclosure was followed with a signature line to acknowledge receipt. Plaintiff was also presented with an Authorization Regarding Consumer Reports and Investigative Consumer Reports (Authorization). Plaintiff signed both of these documents but alleged that he found the documents confusing so he could not make a meaningful evaluation. Weeks after signing the documents Plaintiff received a letter from Meyer with a copy of the consumer report which Meyer uses in evaluating individuals for employment. Plaintiff was also informed that he could dispute the accuracy of the reports within five (5) business days.

Five business days later Plaintiff received a letter that Meyer will not continue his employment and basically he was fired. The Court first said the Act requires a standalone disclosure as in this case. The Court then reviewed each paragraph of the disclosure concluding that the first paragraph does not violate FCRA’s mandate. The mandate states that nothing can be included in the disclosure document other than a “disclosure.” The Court next reviewed the second and third paragraphs of the disclosure and concluded these paragraphs do not violate FCRA requirements.

The Court then examined the fourth and fifth paragraphs of the disclosure and concluded that these paragraphs violate the FCRA’s standalone disclosure requirement.

In the companion case of Luna v. Hansen and Adkins Auto Transport, Inc., the Court concluded that providing FCRA disclosure simultaneously with other employment materials does not violate the FCRA. The disclosure statement was as follows:

“FAIR CREDIT REPORTING ACT DISCLOSURE STATEMENT

In accordance with the provisions of Section 604(b)(2)(A) of the Fair Credit Reporting Act Public Law 91-508, as amended by the Consumer Credit Reporting Act of 1996 (Title II, Subtitle D, Chapter I, of the Public Law 104-208), you are being informed that reports verifying your previous employment, previous drug and alcohol test results, and your driving record may be obtained on you for employment purposes. These reports are required by Sections 382, 413, 391.23, and 391.25 of the Federal Motor Carrier Safety Regulations.”

The Plaintiff contended that the co-presentation of the disclosure and authorization renders the disclosure neither clear nor conspicuous. The Court rejected the argument and concluded applicants such as truckers can be expected to notice a standalone documents featuring a bolded, underlined and capital-letter heading. The Court made it clear that the authorization form is not relevant to the disclosure form and the authorization is not included in the disclosure.

NLRB Establishes Standards for Mail-In versus Manual Ballot during Elections

On November 9, 2020 the National Labor Relations Board issued new standards to determine if a representative election should be conducted by mail-in ballot as opposed to in person manual voting due to COVID-19 related conditions.

NLRB’s long standing policy normally favors manual in person elections. In the past the NLRB has permitted mail-in ballot elections under “extraordinary circumstances” exception. Since March 2020 about 90% of NLRB elections have been conducted by mail. The new guidance lists six circumstances where a mail-in method can be used. Those circumstances are:

The Agency office tasked with conducting the election is operating under “mandatory telework” status.
Either the 14-day trend in the number of new confirmed cases of COVID-19 in the county where the facility is located is increasing, or the 14-day testing positivity rate in the county where the facility is located is 5 percent or higher.
The proposed manual election site cannot be established in a way that avoids violating mandatory state or local health orders relating to maximum gathering size.
The employer fails or refuses to commit to abide by GC Memo 20-10, Suggested Manual Election Protocols.
There is a current COVID-19 outbreak at the facility or the employer refuses to disclose and certify its current status.
Other similarly compelling circumstances.

Only one of the six provisions need be present for the Regional Director to conduct an election by mail-in ballot.

Not surprisingly unions most often request a mail-in election which is normally denied.

Should I Require My Employees to get the COVID-19 Vaccination?

Probably not but the answer is unclear based on current circumstances.

The Americans with Disabilities Act (ADA) generally prohibits employers from mandating getting vaccination unless job related, there must be business necessity and there is an intrusiveness test. Thus employers in the healthcare field are likely permitted to require employees to get the vaccination. Consider also, if a number of your employees refuse to comply you may have a walk-out on your hands which is probably concerted activity under the National Labor Relations Act (NLRA). Even in the healthcare field there are restrictions on mandatory vaccines related to disability, pregnancy or religion. Hopefully we will see clear guidance in the very near future.

Illinois Human Rights Act Was Amended to Provide Mandatory Employer Training

We reported earlier in the year that the Illinois Human Rights Act required every employer to provide sexual harassment training to all employees by year end. The training was to be in conformance with the Department of Human Rights Training Manual.

The original manual for the sexual harassment training has recently been amended to a “Version 2.0”. All employers should incorporate Version 2.0 into their sexual harassment policies.

We have developed a training program which can be modified for most employers. If you have not amended your sexual harassment policy to include Version 2.0, give us a call and we can provide the necessary modifications and provide the required training for your trainers.

NLRB Invites Public Comment on Whether to Band Scabby the Rat

Nearly everyone has seen unions displaying inflatable Scabby the Rat in Chicagoland and elsewhere. In a case brought against Painters District Council 14 and the Chicago Regional Council of Carpenters over displaying giant rats along with banners, the National Labor Relations Board has asked for comments from the public as to whether Scabby the Rat should be banned entirely as being coercive or modify the NLRB’s existing standard that the behavior becomes coercive only when it is accompanied by picketing and similar conduct.

People not directly involved in the case can file comments by December 28, 2020 at the NLRB’s website.

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