On August 3, 2020, the United States District Court for the Southern District of New York struck down portions of the DOL’s Final Rule regarding who qualifies for COVID-19 emergency paid sick leave under the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act, collectively referred to at the Families First Coronavirus Response Act. Of particular importance to employers, the Court invalidated two provisions of the DOL’s Final Rule pertaining to: (1) conditioning leave on the availability of work and (2) the need to obtain employer consent prior to taking leave on an intermittent basis.
Continue Reading Federal Court Strikes Down Portions of Department of Labor’s Final Rule On COVID-19 Leave, Expands Coverage

An employer’s obligations under the Fair Credit Reporting Act are triggered when it obtains a “consumer report” from a “consumer reporting agency” for use in making an employment decision. A federal court in the Middle District of Florida is set to rule on a summary judgment motion clarifying whether a business that transmits public records unaltered to a prospective employer is a “consumer reporting agency”.
Continue Reading New Litigation May Further Clarify the FCRA’s Definition of “Consumer Reporting Agency”

Social distancing and uncertainty about COVID-19 have altered many aspects of daily life, uprooted traditions, and redefined “normal.” Unions are seizing this opportunity in a push for electronic representation elections.  On May 6, a coalition of fourteen unions urged Nancy Pelosi, Mitch McConnell, Kevin McCarthy, and Chuck Schumer to fund and direct the NLRB to establish a system and procedures to facilitate electronic union representation elections.
Continue Reading Electronic Union Representation Elections Are Looming

A hotly contested ruling in a Fair Credit Reporting Act class action case will soon be appealed to the Supreme Court of the United States.  The Ninth Circuit in Ramirez v. TransUnion LLC, Case No. 17-17244, recently granted the parties’ Joint Motion to Stay the Mandate, seeking to stay the Ninth Circuit’s mandate pending TransUnion’s filing of a petition for writ of certiorari in the Supreme Court.  The Motion to Stay comes soon after the court denied TransUnion’s Petition for Rehearing or Rehearing En Banc regarding the Ninth Circuit’s decision in Ramirez v. TransUnion LLC, 951 F.3d 1008 (9th Cir. 2020).
Continue Reading TransUnion to Seek Supreme Court Review After Ninth Circuit Finds Class Members Had Standing and Partially Upholds Punitive Damages Award

For the first time in the Ninth Circuit, the Court of Appeals addressed the issue of whether every class member in a class action lawsuit needs “standing” to recover damages at the final judgment stage, and found in the affirmative.  In Ramirez v. TransUnion LLC, No. 17-17244, 2020 WL 946973 (9th Cir. Feb. 27, 2020), a class of 8,185 consumers brought a class action against the credit reporting agency TransUnion LLC pursuant to the Fair Credit Reporting Act, alleging that TransUnion, knowing that its practice was unlawful, incorrectly placed terrorist alerts on the front page of consumers’ credit reports and later sent the consumers misleading and incomplete disclosures about the alerts and how to remove them. 
Continue Reading For the First Time in the Ninth Circuit, the Court Finds That All Class Members in a Class Action Must Have Standing to Recover Damages

With the age of artificial intelligence unfolding, products aimed at automating the recruiting and hiring process are hitting the market with increasing frequency.  Companies have been utilizing AI for tasks such as screening resumes, and even interviewing candidates and assessing whether they will be successful employees.
Continue Reading New York City Introduces Bill to Regulate the Use of AI in Employment Decisions

On December 17, 2019, the Fair Chance to Compete for Jobs Act of 2019 was signed by the President as an amendment to the National Defense Authorization Act.  This federal “ban-the-box” law proscribes federal agencies and contractors from asking about a job applicant’s criminal history until after they make a conditional offer of employment.
Continue Reading The Federal “Ban the Box” Law Is Enacted While Evidence Suggests that Such Laws Do Not Have the Intended Consequences

On November 22, 2019, the federal Consumer Financial Protection Bureau filed a complaint in the U.S. District Court for the Southern District of New York against Sterling Infosystems, Inc. regarding allegations that it violated the Fair Credit Reporting Act in providing criminal background checks to employers.  Sterling is a “consumer reporting agency” as defined by the FCRA, which provides background check results to employers when requested.
Continue Reading Background Check Vendors Beware: the CFPB’s Authority to Enforce the FCRA Applies to You Too

Dollar General and the Equal Employment Opportunity Commission recently settled a six-year-old Title VII lawsuit.  The EEOC brought its race discrimination claim on behalf of a Charging Party and a class of Black job applicants, alleging that Dollar General’s use of criminal justice history information in the hiring process had a disparate impact on Black applicants.
Continue Reading The EEOC Settles Six-Year-Old Lawsuit Attacking Background Check Policy

The National Labor Relations Board under the current administration continues to issue employer friendly rulings in the context of evaluating whether employer work rules violate the National Labor Relations Act. 
Continue Reading Boeing Test Takes Off as NLRB Holds Employer’s Confidentiality and Media Contact Rules Lawful