Posted in Department of Labor, DoL, employment, Federal law, minimum wage
Back in 2013, the U.S. Department of Labor decided to overhaul the minimum wage and overtime rules for home health care workers, a field whose employment laws had not changed since the mid-1970s. That ruling was supposed to take effect this year, but the Department is now putting that decision on ice while it sees if it can get an industry-wide ruling from the Supreme Court.
Previously, home health care workers — who primarily take care of elderly patients in their own homes — were generally thought to be employed through agencies or directly by the family itself, and were therefore exempt from federal minimum wage standards.
In 2014, a U.S. District Court ruled that overtime and minimum wage should be extended to all home care workers, whether they worked for a third-party agency or an individual, and President Obama has continued to argue for reform of overtime policies.
However, the Department of Labor has received pushback from industry organizations such as the National Association for Home Care & Hospice and the Home Care Association of America. These organizations assert that increasing minimum wage and providing overtime wages will be a detriment to those individuals or families that employ the home care workers, and have requested that the ruling not be put into effect until they can appeal it to the Supreme Court.
Because of this request, the Department awaits a mandate from the appeals court; once it receives that decision, it must wait 30 days before implementing a wide-scale pay raise for home care workers. There is no clear expectation for when that mandate will come.
Posted in fingerprinting, government, identity theft, Office of Personnel Management, OPM
Previously, MYB has shared news regarding the security breach of the Office of Personnel Management, in which hackers — presumed to be from China — gained access to up to 21.5 million individuals’ background check and security clearance data from as long as three decades ago.
Last week, OPM admitted that during that breach, hackers accessed up to 5.6 million government workers’ fingerprints. Though the department did not disclose whose fingerprint data was compromised, the fingerprints are suspected to belong to military and intelligence personnel that maintain security clearances.
In a statement, OPM stated that it would provide free credit monitoring to all the employees whose fingerprints may be compromised. “Federal experts believe that, as of now, the ability to misuse fingerprint data is limited,” the statement read.
However, there is concern that — as technology evolves to include more biometric authentication features — government security systems may be more easily breached in the future by hackers or foreign governments. In addition, unlike passwords, fingerprint information is permanently linked to an individual.
“The interagency team will continue to review the impacted data to enhance its quality and completeness, and to monitor for any misuse of the data,” said the OPM in its statement.
In addition to the fingerprints, OPM confirmed that the hackers gained access to those employees’ clearance questionnaires, which contain information that could be used to blackmail government employees.
Posted in background checking, background screening, employment, employment background screening, identity theft, scams
In a recent study regarding cyber crime and company security, business professionals were asked what factors they deemed most important when it comes to protecting their companies against hacks, stolen data and other cyber crimes.
While survey respondents had the option to choose from a variety of factors — such as physical security, access control and anti-malware software — a full 60 percent of respondents said the most important form of security is to conduct background checks on potential and current employees. This is perhaps because 35 percent of respondents see former employees as the highest security threats, only behind professional hackers (whom 55 percent of respondents saw as a security threat).
In addition, 47 percent of the professionals were concerned about their own personally identifiable information being stolen due to cyber crime, more so than about other information — such as credit or financial information, or intellectual property — being stolen.
The study showed that in 2015 alone, “compromised records” have resulted in approximately $400 million in employer losses.
Ninety-eight percent of respondents said that they thought background screening was at least “somewhat important,” with 57 percent declaring background screening to be “extremely important” to cyber security. Likewise, 35 percent of respondents thought re-screening existing employees was, at least, “somewhat important.”
However, despite these admissions, only 13 percent of the employees’ companies conduct repeat screening year after year, with an additional 10 percent conducting employee re-screening biannually. Sixty-one percent of respondents said their companies never re-screened employees after hiring.
To learn more about conducting employment re-screening, or to create re-screening policies, get in touch with Mind Your Business.
photo credit: Phone security via photopin (license)
Posted in adverse action, criminal record, EEOC, employment
After more than two years in court, BMW Manufacturing has signed a consent decree with the Equal Employment Opportunity Commission, and agreed to pay $1.6 million out to 56 claimants.
According to the Equal Employment Opportunity Commission, those claimants may have been discriminated against when BMW took adverse action against them due to stringent criminal record checks conducted after they had already been hired. The EEOC had sued because BMW’s background checks were disproportionately screening out black candidates and employees, and race is a protected class under the EEOC.
Those 56 claimants that had adverse actions taken against them will be offered the option to come back to work at BMW Manufacturing if they so chose.
Despite its payout, under the consent decree BMW Manufacturing claims no liability or guilt about potential racial discrimination. Rather, the consent decree allows the EEOC to provide guidelines for BMW Manufacturing regarding its future behavior when hiring and taking adverse action against existing employees.
The consent decree states that BMW may not refuse to hire a logistical employee due to arrests or charges against a candidate if that candidate was not formally convicted (though they can put off a decision until a resolution is reached in an existing case). BMW must also provide an individualized assessment before taking adverse action and deliver it to the employee, as well as provide the employee 21 days to contact the company before disqualifying the job applicant due to something in the candidate’s criminal record.
The EEOC does not typically require a company to provide individual assessments. Additionally, taking adverse action after five business days’ notice is standard under the Fair Credit Reporting Act.
Posted in Department of Labor, DoL, Federal law, minimum wage
Last week, the U.S. Department of Labor’s Wage and Hour Division sued the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS) and several employers within the sect for continuing to violate child-labor laws after a 2007 court order demanded they cease the employment of minor children for pecan harvesting.
The Wage and Hour Division had been investigating the FLDS church for several years, and this lawsuit is on behalf of approximately 175 children under the age of 13 that worked during the 2012-2013 pecan harvest and received no compensation for their efforts. (An estimated 1,400 children and adults in south Utah and north Arizona were not compensated for their work during that year’s harvest.)
“For years, these employers have trampled on the rights of workers, both children and adults, and violated our child labor laws, forcing minors to work for them,” said Dr. David Weil, Wage and Hour Division Administrator. “Such disregard for the rights of all workers, especially children, will not be tolerated.”
By suing, the Department has taken action to collect $1.9 million from FLDS employers Lyle Jeffs, Dale Barlow, Brian Jessop, and Paragon Contractors Corp. in civil penalties for violating the Fair Labor Standards Act (including child labor, overtime and minimum wage laws). The Department has also requested back wages be paid to those children and adults that were not compensated in 2012-2013, and has filed contempt-of-court charges against Paragon and Jessop, who were charged with similar violations in 2007.
Neither the FLDS church nor Jeffs contested the penalties in 2007, so the Department was able to assess the current financial penalties for repeat violations.
Posted in background check, background screening company, credit checks in employment
Two different courts have provided two different rulings about how California employers deal with investigative background checks, providing little clarity for other companies that may want to conduct screening in the state.
First Student Inc. was sued by one of its employees, Eileen Connor, after the company bought out Laidlaw Education Services, for which Connor was a school bus driver. First Student had notified its acquired employees that it would be requesting an “investigative consumer report” on each employee. That consumer report was to contain dates of previous employment, credentials, educational background, records of drug and alcohol use, and information “relating to the employee’s character, general reputation … and qualifications for potential employment.”
Connor sued under the California Investigative Consumer Reporting Agencies Act (ICRAA), because First Student had not obtained her written permission before conducting any background screening, whether for a credit or character report. Meanwhile, First Student requested summary judgment due to the ICRAA being “unconstitutionally vague” because the ICRAA was not clear whether it only applied to questions of credit reporting or if it applied to an employee’s character report.
The first court agreed with First Student, in that the law was too vague to be upheld, and also that it conflicted with another, similar law. Connor appealed this decision and the appeals court determined that, regardless of the ambiguity of the ICRAA, First Student did not have the right to conduct basic background screening (including criminal records and employment history) without Connor’s written permission.
The case is now back at trial court.
Because there is so much ambiguity in the law when it comes to background checking, your best bet is always to hire a background screening company when making hiring decisions, as they are the most likely to be versed in your state or region’s screening laws. To learn more about what a background screening service can do for your business, contact Mind Your Business.
Posted in drug screening, drug testing, drug testing policy, employment, pre-employment background checks, pre-employment background screening
Whether you’re hiring a new CEO, middle manager or an entry-level employee, smart employers take the time to drug test job applicants. There are several reasons to do so: an employee with a substance abuse problem can cost an employer a lot of money, are more likely to cause accidents in the workplace, and can be an indicator of other problems to come.
First, those with substance abuse problems are more likely to cause accidents. Whether your business operates a warehouse or factory, or functions primarily in an office setting, employees that utilize illegal drugs are more likely to put their co-workers, themselves and the business at risk due to potential injuries or poor judgment calls.
Second, employers should drug test job applicants because a substance abuse problem can be a sign of things to come. The employee may be more prone to lie, be unreliable or even commit crimes — such as theft — against the company or other employees.
Finally, and this is the big one, an employee that uses drugs is a big liability to a company, and can cost a business a lot of money. As already mentioned, accidents in the workplace may result in the company being sued by employees, and worker’s compensation will need to be paid out for any injured employee. A loss in employee productivity due to injury or distraction on the job can cause losses in company revenue as well.
In addition, some states or regions have laws about what adverse action employers can and cannot take when it comes to discovering an employee has a drug addiction. Some states allow employers to impose zero-tolerance drug policies, while others mandate that employers must provide reasonable attempts to enroll the employee in rehabilitation and/or detox programs, which are often funded by the employer.
Even if an employer does have the right to terminate an employee’s position for being under the influence, the company wastes money by staying in a loop of hiring and firing employees for the same position. In order to avoid these types of problems, it’s best to drug test job applicants before an unconditional offer is extended.
To learn how to create or implement a drug testing policy for your business, contact Mind Your Business to get started.
Posted in background screening, criminal background checks, pre-employment background checks
While some forms of background screening are par for the course for most employers, fingerprint background checks are not always as common. However, they have been getting more and more press recently. Why do employers check fingerprints in the first place, and what can they find out by doing them? Should all employers check fingerprints before hiring?
Here are three good reasons for doing fingerprint background checks at this time:
1) To meet position requirements. Some types of positions — such as teachers and law enforcement officers — require thorough background screening to ensure the employee does not have a criminal record that would preclude him or her from being able to perform the job. For those who work with children or the elderly, any kind of felony record is likely to remove that candidate from consideration.
2) To meet industry requirements. Some employers, such as Medicaid, have implemented requirements that some (if not all) employees must undergo fingerprint background checks in an attempt to reduce instances of fraud. Employers check fingerprints because they can be checked against databases like the FBI’s fingerprint database, in which any crime that has been reported in county, state or federal courts will turn up. (However, these databases are not foolproof. Problems with how the districts report crimes and how the databases are managed have cause concern before.)
3) To ensure a future employee’s criminal record is clean. While databases are not perfect, fingerprints are the most accurate way to ensure a person’s identity and criminal record. While you can always change the name you go by, you can’t change your fingerprints, and so any records associated with those fingerprints will always be there. Even if a position does not legally require someone with a clean criminal record, some employers are more likely to prefer candidates that don’t have certain types of crimes on their records (such as financial crimes if the candidate is applying to work in the accounting department).
Contact Mind Your Business to learn if fingerprint background checks are right for your company.
Posted in Department of Labor, employment
According to a release from the U.S. Bureau of Labor Statistics, the unemployment rate continued to drop in August, with that month showing an unemployment rate of just 5.1 percent. Non-farm employers saw 173,000 new jobs created, primarily in financial activities and health care services. This is slightly lower than the monthly average so far this year, of 247,000 new jobs per month.
As of August, 59.4 percent of the U.S. population is employed. This is consistent with the employment rate this year, and has held steady overall in 2015 thus far.
Of those 173,000 new jobs created in August, health care and social assistance (including child day care services and elder care services) saw 56,000 new jobs added. Just over a third of those jobs are in ambulatory health care services; 16,000 jobs were added each for hospital workers and social assistance workers.
Professional and business services also saw gains of 33,000, while financial activities added 19,000 jobs (with almost half of them being real-estate positions). Food services and drinking places saw 26,000 new jobs as well.
The construction, trade, transportation and government sectors saw little change in job availability in August.
In addition, non-farm employees saw an increase in hourly wage earnings by 8 cents, putting the average hourly earnings rate at $25.09.
On the downside, the mining industry continued to lose jobs in August, and manufacturing took a hit last month as well. Mining saw a decrease of 9,000 jobs, mostly in mining support, with more than 90,000 jobs lost in the industry over the past 10 months.
Manufacturing also saw a decrease, with 17,000 jobs lost. The manufacturing industry had held steady over the summer, but in August, the number of jobs lost in component industries and food manufacturing could not make up for gains in vehicle manufacturing and durable goods.
Posted in adverse action, credit checks, EEO, employment, FCRA
Sometimes employers have to make hard business decisions, including deciding whether or not to hire a job applicant. There are plenty of ways applicants could talk themselves out of a position, but other factors — such as running a pre-employment credit check or criminal history report — could play into that decision as well.
When you decide not to hire someone due to something that appeared in a criminal or credit report, that’s called “adverse action.” Adverse action can also be letting go an existing employee, or refusing promotions based on similar information. For the sake of this blog post, however, we will focus on taking adverse action during the hiring process.
Taking adverse action is legal, so long as you do not discriminate against a candidate in your action, and as long as you have the candidate’s written permission to conduct these kinds of background checks. It’s not illegal to require someone to sign their permission for these types of background checks in order to receive job offers or promotions either. (In fact, at-will employment is valid in every state in the U.S., though some states offer exemptions in order to protect employees.)
In order to conduct credit checks, employers must follow two federal laws: the Fair Credit Reporting Act and the Equal Credit Opportunity Act. The former allows applicants to review their credit report if adverse action is going to be taken based on information in the report, to ensure that the information contained in it is correct. (The applicant then has a set amount of time — which varies by state — in which he or she must contest the information with the credit reporting agencies.)
The Equal Credit Opportunity Act simply requires that employers not take adverse action based on any discriminatory factors, such as the person’s age, sex, race, religion, national origin or other protected classes.
These laws and considerations are important to keep in mind during the pre-employment process in order to avoid lawsuits. Because there are rules surrounding how permissions must be gained in regards to credit checks, and laws vary by state in how the applicant can contest adverse actions, let Mind Your Business help you get started with your pre-employment screening process.
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