January 1, 2013: New FCRA Forms Required by New Enforcement Agency

Posted on January 30th, by Editor in Counseling & Compliance Training. No Comments

By: Marion B. Cooper

With little or no ballyhoo, the newly created Consumer Financial Protection Bureau (“CFPB”) has assumed responsibility for enforcement of the Fair Credit Reporting Act (“FCRA”), the role previously allocated to the Federal Trade Commission (“FTC”).  This change was implemented by a transfer of FCRA rulemaking authority from the FTC to the CFPB under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.

The FCRA regulates consumer information.  Employers are required to follow specified procedures when they use third parties known as consumer reporting agencies to obtain consumer reports or investigative consumer reports on employees and applicants under the FCRA and the employer uses that consumer report for “employment purposes.”  Consumer reports may include credit checks, motor vehicle records and driving history and criminal background information, among other types of information.

The CFPB has issued updated FCRA notices … Read More »


Management and Human Resources Personnel May Not Find Protection Under Title VII’s Anti-Retaliation Provisions

Posted on January 28th, by Editor in Counseling & Compliance Training. No Comments

By: Frank Nardulli

On January 21, 2013, the U.S. Supreme Court denied a request for appeal filed by a former loss prevention specialist who claimed that she had been unlawfully terminated in retaliation under Title VII of the Civil Rights Act of 1964 because she had opposed her employer’s handling of a sexual harassment investigation.  Brush v. Sears Holding Corp., 466 Fed. App’x 781, 2012 WL 987543 (11th Cir. March 26, 2012), cert. denied, 2013 WL 215521 (U.S. Jan. 21, 2013) (No. 12-268).  The appellant specifically challenged the Eleventh Circuit Court of Appeals’ reliance on the “manager rule” when it affirmed the dismissal of her claim.  A majority of circuit courts have adopted some form of the “manager rule,” which has significant impact on the application of Title VII and other claims against employers by management and other personnel charged with … Read More »


The Dos and Don’ts of Implementing a Mandatory Flu Vaccine Policy Outside the Hospital Setting

Posted on January 24th, by Editor in Counseling & Compliance Training. No Comments

By: Meredith R. Murphy

As health experts describe this flu season as one reaching epidemic proportions, many employers are questioning the legality of requiring their employees to receive a flu vaccine shot when they recognize business and safety needs for ensuring their work environments and workforce are better protected from the flu virus.  This need is especially acute for non-hospital employers who care for individuals with compromised immune systems, such as rehabilitation centers or schools.  While a different set of considerations come into play when a hospital is assessing how to implement a flu vaccine policy (see our post from January 24, 2013 – “Firing Employees Who Don’t Get Flu Shots:  What Risks Do Hospitals Face”, Mark Nelson), non-hospital employers have business needs and health concerns that may make implementation of a flu vaccine policy desirable or necessary.

So, what should an employer … Read More »


Firing Employees Who Don’t Get Flu Shots: What Risks Do Hospitals Face?

Posted on January 24th, by Editor in Counseling & Compliance Training. No Comments

By: Mark D. Nelson

As hospitals continue to see an onslaught of flu patients, they also face challenges to flu vaccination policies designed to reduce the spread of flu to patients and fellow employees.  Hospitals are understandably concerned with protecting patients, visitors and employees from contracting the flu and the potentially serious consequences to the health of elderly and infant patients. However, protecting patients against flu can create legal liability when employees are disciplined, discharged or suffer other adverse action because they do not get a flu shot.

Employment Considerations for Flu Vaccination Policies—The National Labor Relations Act

What limitations exist on a hospital’s ability to create and implement a flu/other vaccination policy?  Under the National Labor Relations Act, a flu vaccination policy is a mandatory subject of bargaining.  This means that unionized hospitals cannot unilaterally implement such a policy without first giving … Read More »


Bye-Bye, Big Labor? What Michigan’s “Right to Work” Law Means for Employers

Posted on January 22nd, by Editor in Audits/Due Diligence. No Comments

By: Mark D. Nelson and Alejandra Lara

Michigan’s new right to work law, which endorses the right to engage in or refrain from collective action and prohibits the closed shop, analogous to right to work laws in many other states, is not well received by labor unions.  Why do unions hate right to work laws, particularly when they change the way things have been for decades?  Because unions lose – they lose revenue because employees can no longer be forced to pay dues or agency fees to the union in order to keep their jobs.  Unions also lose power – they can no longer fine employees who violate the union’s rules.  The union continues to have the obligation to represent all employees in the bargaining unit equally, but will likely get paid less (in dues) for doing so.

The Michigan right to … Read More »


Board Reverses 34-year Rule and Requires Employers to Give Unions Actual Witness Statements

Posted on January 9th, by Editor in Audits/Due Diligence, Counseling & Compliance Training. No Comments

By: Mark D. Nelson

Since 1978, the National Labor Relations Board has allowed employers to refuse to provide unions with copies of witness statements obtained during an investigation of employee misconduct.  In Anheuser-Busch, 237 NLRB 982 (1978), the Board agreed with a U.S. Supreme Court ruling that disclosure of witness statements to a union would create a risk of coercion and intimidation and could well cause witnesses to be reluctant to provide truthful statements or participate in Board investigations.  Recognizing that a union may have a legitimate need for information related to the investigation, the Board required employers to provide summaries of the witness statements to the union.  This requirement balanced the confidentiality rights of the employees providing the statements with the union’s interest in relevant information.

The Board has rejected this “bright-line” rule and replaced it with a “balancing test” to … Read More »


Facebook Firings – An Old Approach to the New Issue of the Virtual Water Cooler

Posted on January 3rd, by Editor in Counseling & Compliance Training, Crisis Management. No Comments

By: Amy Lauricella

The National Labor Relations Board (“Board”) issued its second decision on a firing over Facebook posts on Wednesday, December 19, 2012.  The Board, avowing its commitment to the idea that speech on a personal, non-work-related social media outlet should be treated the same way as discussions on work premises, ordered a non-profit organization to reinstate five employees who were fired over Facebook posts.  In a 3-1 decision in Hispanics United of Buffalo, Inc., 359 NLRB No. 37, 12/14/12 [released 12/19/12], the Board affirmed the administrative law judge’s ruling that the employer violated the National Labor Relations Act (“NLRA”) when it terminated five employees for posting Facebook comments in response to a co-worker’s criticism of their job performance.

While noting that at issue was a novel mode of employee communication, the Board agreed with the ALJ that the appropriate analytical … Read More »




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