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Status Of Federal Agencies And Courts During Government Shutdown

[October 4, 2013]  Many employers may have questions about the operational status of federal agencies and courts during the ongoing shutdown of the federal government.  Some current information of interest to employers is summarized below:

  • Department of Labor (“DOL”):  Most DOL offices, including the Employment and Training Administration (“ETA”) and the Wage and Hour Division, have suspended their operations.  Therefore, such matters as Labor Condition Applications, Prevailing Wage Determinations, Applications for Temporary Employment Certification, and Applications for Permanent Employment Certification will not be accepted or processed during the shutdown.  However, the Office of Workers’ Compensation Programs will continue to process certain types of benefits claims.
  • Equal Employment Opportunity Commission (“EEOC”):  The EEOC will continue to accept and process charges but will not investigate cases during the shutdown.  All mediations and federal sector hearings will be cancelled, and FOIA requests will not be processed.  Also, EEOC staff will not be available to answer questions or provide assistance to the public.
  • Federal Courts:  Currently, the federal courts remain open.  However, the federal judiciary will reassess the situation if the shutdown continues through October 15, 2013.
  • National Labor Relations Board (“NLRB”):  As all but a handful of the NLRB’s employees have been furloughed due to the shutdown, the agency’s regional offices have been closed, and the NLRB is not processing unfair labor practice (“ULP”) or representation cases.  Most filing deadlines will be tolled while the shutdown continues.  However, since the NLRB may not have the authority to extend the statutory six-month limitations period for filing ULP charges, the agency has recommended that ULP charges be faxed to regional offices if necessary to ensure compliance with the six-month filing requirement.
  • U.S. Citizenship and Immigration Services (“USCIS”):  Because USCIS is funded by user fees (rather than appropriations), the agency is continuing to operate.  However, the E-Verify employment eligibility confirmation system is unavailable during the shutdown.  Employers enrolled in the E-Verify program will be given additional time to create E-Verify records and resolve Tentative Non-Confirmations once the system becomes operational again.

Employers should be aware that this information may be subject to change, particularly if the shutdown is prolonged.  Thus, employers should closely monitor further developments in these areas.

Employers: Proceed With Caution When Using Background Checks

[June 3, 2013]  The New York Times recently reported on a risky practice involving background checks:  many U.S. retailers are obtaining and using information about applicants’ past admissions of stealing on the job.

The Federal Trade Commission (“FTC”) is cracking down on this practice, examining whether the databases that contain this information comply with the Fair Credit Reporting Act (“FCRA”).  Key concerns include whether the workers are coerced into confessing, and whether they understand what they are signing or how it will be used.

Employers receiving such information as part of a background check should be cautious about using it as the basis for an employment decision.  The risks may greatly outweigh the benefits.

FCRA is being applied to new technology in other ways.  For example, on May 1, 2013, the FTC approved a settlement order in its first FCRA case involving mobile applications (“apps”).  Companies were selling apps that allowed users to access criminal records, without complying with FCRA.  The settlement order requires compliance in the future.

When considering using new hiring tools, employers should always consider whether such use complies with FCRA as well as any applicable state law (see our article about the Massachusetts CORI law here).

Facebook Evidence May Be Discoverable: Ask For It! (Preserve It!)

[May 13, 2013]  A federal judge in New Jersey recently sanctioned a plaintiff for deleting his Facebook account, which purportedly contained photographs and other information that contradicted his personal injury claims against the defendants.

The plaintiff had agreed, as part of discovery, to provide the contents of his Facebook account.  Instead, he deleted it.

As a sanction, the court agreed to provide a spoliation instruction at the trial, instructing the jury that it may draw an adverse inference from the plaintiff’s destruction of the evidence.

The decision serves as a reminder that employers should seek discovery of from the Facebook and other social media accounts of plaintiffs in employment litigation.  (Ask for it!)

It is also a reminder to businesses that they must ensure that their managers and other decision-makers do not destroy such evidence, if it exists.  (Preserve it!)

2012 Is Here! Time To Review And Update Your Employment Policies

This year, it is especially important for employers to review their employee handbooks to ensure that they are both legally compliant and up to date with current practices.  Numerous changes in federal and state employment laws have taken place over the past year and are slated to become effective in 2012, requiring employers to act now.  Read more.