Category Archives: Employment Screening

Workplace Privacy and Monitoring: The Quest for Balanced Interests

Source: Ariana R. Levinson, Cleveland State Law Review, Vol. 59, No. 3, 2011

From the abstract:
This article describes some of the difficulties for employers and employees resulting from advancing technology. It briefly describes some of the technology available to employers with which to monitor employees. The article then provides an overview of the primary sources of law governing employer monitoring and employee privacy, such as the Electronic Communications Privacy Act, state statutes providing for notice of monitoring or protection of the integrity of personnel records or lawful off-duty activity, the tort of invasion on seclusion, and the Fourth Amendment. The article concludes by offering suggestions for attorneys who represent employers, employees, or unions and are interested in addressing these issues. Attorneys and their clients can advocate for federal or state legislation, address these issues in collective bargaining or through private policies, or become involved in educational efforts.

Tattoos and Body Piercings: New Terrain for Employers and Courts

Source: Jon D. Bible, Labor Law Journal, Vol. 61 no. 3, Fall 2010
(subscription required)

Recent years have seen an increasingly large segment of society opt to adorn itself with all manner of tattoos and body piercings…. Because most of these people are, or will be employed, employers must decide what stance to take regarding this phenomenon. Should they turn a blind eye, on the theory that how one presents herself to the world is her business> Or are they within their legal rights to ban this art if they believe it will either negatively affect the workplace atmosphere, or so offend their customers that their business will suffer?

Using the Internet to Conduct Background Checks on Applicants for Employment

Source: Diane M. Juffras, University of North Carolina at Chapel Hill School of Government, Public Employment Law Bulletin, no. 38, October 2010

From the summary:
This bulletin discusses the legal issues that North Carolina public employers should consider before they use the Internet to conduct or supplement background checks of prospective employees.

Workers’ Comp Screening Has Its Risks as Well as Rewards

Source: Fay Hansen, Workforce Management Online, September 2010

While background screening firms are adding workers’ comp checks alongside drug testing, credit reports and court records, collecting information on injuries and claims could expose companies to legal risks, including ADA compliance issues.

ith a prolonged hiring slump still dogging many industries, employment screening vendors are expanding their offerings and promoting new services to boost business. A number of vendors, such as LexisNexis, HireSafe and TalentWise, now include a review of workers’ compensation claims to their list of tools that employers can select to screen job candidates.

The Unintended Impact of New Jersey’s New Medical Marijuana Law on the Workplace

Source: Amy Komoroski Wiwi and Nicole P. Crifo, Employee Relations Law Journal, Vol. 36 no. 1, Summer 2010
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With the enactment of the New Jersey Compassionate Use Medical Marijuana Act, New Jersey employers are faced with new challenges in the workplace. This article addresses these challenges and provides guidance for employers dealing with employees who are using marijuana for certain debilitating medical conditions.

Major U.S. Cities and Counties Adopt Hiring Policies to Remove Unfair Barriers to Employment of People with Criminal Records

Source: National Employment Law Project, January 10, 2010

Urban areas across the United States (including Austin, Baltimore, Boston, Chicago, Minneapolis, San Francisco, and St. Paul) have limited discrimination in city and county jobs against people with criminal records. As Mayor Richard Daley explained when he announced Chicago’s new hiring policy, “Implementing this new policy won’t be easy, but it’s the right thing to do. . . . We cannot ask private employers to consider hiring former prisoners unless the City practices what it preaches.”

A Lower “Salt” Content for Employers

Source: Katie A. Mabanta, Alyson B. Skloot, Hofstra Labor & Employment Law Journal, Volume 26, No. 1, Fall 2008

This Note argues that recent NLRB decisions such as Oil Capitol II have not only altered the law in this field, but have also had the effect of putting employers in a more economically favorable position. Part II provides a brief history on the unionization technique of salting, defines the role and characterization of salts, and distinguishes the use of this technique in the construction industry. Part III discusses the law establishing “union salts” as protected “employees” under the NLRA. Part IV describes the Wright Line test used by the NLRB to determine whether the General Counsel has established a prima facie case that the employer has committed an unfair labor practice. Part V examines the remedies issued by the NLRB in hiring discrimination cases, i.e., backpay. Part VI provides a synopsis of the Oil Capitol II holding, specifically in regards to the new evidentiary standard set forth with respect to the establishment of backpay remedies. Further, this section addresses the dissenting Board members’ opinions. Part VII argues that because of Oil Capitol II and its progeny, employers will inevitably discriminate against union salts. Part VIII discusses the possible effect that Oil Capitol II will have on the investigative and litigation strategies of the General Counsel. Part IX includes both cases spawning from Oil Capitol II and cases issued subsequently to Oil Capitol II, which used its newly established framework. Part X provides a political analysis of the impact of these decisions on the NLRB and the workforce. This Note concludes, that these law-changing decisions have not only assisted employers, but will potentially cause unions to rethink their usage of salts as a unionization method.

Private Immigration Screening in the Workplace

Source: Stephen Lee, Stanford Law Review, Volume 61, Issue 5, 2009

For over twenty years, our immigration laws have required employers to screen their workforces for “unauthorized” immigrants. But rather than punish employers for failing to carry out these duties, the Department of Homeland Security (DHS) has worked with employers to identify unauthorized workers for removal–even where it is abundantly clear that employers are reporting the very workers they unlawfully hired in the first place, and are doing so to retaliate against workers who assert labor and employment rights. How can a law that was designed to punish employers be used to reward them? This Article attempts to explain this counterintuitive result. Although the DHS-employer relationship appears to be contentious and antagonistic, that relationship can often be highly collaborative and mutually beneficial, where the DHS overlooks employer indiscretions in exchange for help identifying potentially removable immigrants. In this way, employers resemble other immigration screeners, like airport inspectors and state and local law enforcement officers, who assist the DHS by winnowing down to a manageable size the pool of potentially removable immigrants. This Article therefore argues that employers should be regulated as screeners where employers should be punished for using their screening authority beyond the scope of its intended use, which often means employers using reporting and the threat of reporting to avoid liability for labor and employment violations. Thus, while our immigration laws contemplate punishing employers at the front end for who they hire, this Article argues our laws should also punish employers at the back end for who they report. As one set of remedies, this Article proposes subjecting employers to possible audits if they report workers to the DHS, and applying the exclusionary rule against complicit immigration officials.

Putting a Big Chill on a “Big Hurt:” Genuine Interest in Employment of Salts in Assessing Protection Under the National Labor Relations Act

Source: Jeffrey A. Mello, Employee Responsibilities and Rights Journal, Published online: 25 July 2008

(subscription required)

From the abstract:

As union membership has continued to decline steadily in the US, union organizers have become more creative and vigilant with their organizing strategies. Chief among these strategies has been “salting,” a process by which unions attempt to organize employees from the inside rather than the outside. The Supreme Court has ruled that, under the National Labor Relations Act, “salts” cannot be discriminated against solely on the basis of their status as salts. This paper examines employer responses to resist salting efforts, including a recent decision by the National Labor Relations Board, which redefines the landscape under which salting activities can be conducted and considered protected activity.