Category Archives: newsletter Items

Darlene T. Martinez was confused with Darlene Foster Ramirez, found guilty in 2009 of dangerous-drug possession.

Darlene Martinez alleges that Universal Background Screening failed to notify her about a damaging report and didn’t follow the necessary procedures to ensure accuracy, costing her a job.

Story Highlights

  • Legal experts say background checks can be filled with errors because of incomplete databases
  • The errors can be difficult to fix, costing applicants job opportunities, disrupting livelihoods
  • The FTC fined a California company $2.6 million for failure to ensure maximum accuracy

PHOENIX — Darlene T. Martinez was grateful to be offered a housekeeping job at a local hospital soon after the Progressive Group of Insurance Cos. closed part of a call center where she had worked. This was in early 2011, in a much weaker economy.

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NLRB continues to dissect employer social media policies

English: Color logo of the National Labor Rela...

Consistent with its decision to invalidate a Costco social media policy that prohibited employees from posting damaging or defamatory statements about the company or any other individual, the National Labor Relations Board (“NLRB”) recently invalidated two statements in Dish Network’s social media policy, one prohibiting employees from making “disparaging or defamatory comments” about Dish and another prohibiting such behavior on “Company time.” Applying the test outlined in Costco (October 2012 FEB), the NLRB held that this language violated the National Labor Relations Act by “banning employees from engaging in negative electronic discussion during ‘Company time,'” and failing to clarify such discussion could occur during breaks and other non-working hours at the business. This decision further highlights the importance of a carefully drafted social media policy, with the assistance of legal counsel.

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New Fair Credit Reporting Act (FCRA) forms required January 1, 2013

Employers must begin using new Fair Credit Reporting Act (FCRA) forms no later than January 1, 2013. The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 transferred FCRA rulemaking authority from the Federal Trade Commission (FTC) to the newly created Consumer Financial Protection Bureau (CFPB).

The FCRA regulates employers who use background checks provided by third parties, known as Consumer Reporting Agencies (CRA), as part of the employment process. Before an employer may obtain a background check on an applicant or employee from a CRA, the applicant or employee must be given certain information about the scope of the background check and must consent to the background check. This is where the new forms are relevant. The main change in the forms is that consumers must now contact the CFPB, rather than the FTC, about their rights under the FCRA.

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Employer’s access of cell phone and Stored Communications Act

Harris County Courthouse, Houston, TexasThe Fifth Circuit held that an employee’s cell phone was not covered under the Stored Communications Act and therefore her employer did not violate the Act when it accessed the cell phone without her permission. The employer, a city police department, terminated the employee after it discovered images and text messages on her cell phone that violated police rules. The court found that the Act, which protects electronic data, only covers information stored by an electronic communication service provider, and does not reach information stored on a cell phone. The Fifth Circuit noted that this interpretation was consistent with other courts, who had previously held that the Act applied to service providers such as phone companies and Internet or email providers, but did not apply to an individual’s computer, laptop or mobile device.

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WHAT IS BIT?

CHP Logo 3

THE BIENNIAL INSPECTION OF TERMINALS

 The California Commercial Motor Vehicle Safety Act of 1988, commonly referred to as the Biennial Inspection of Terminals (BIT) Program, was enacted by the California Legislature in an effort to alleviate the growing number of truck related collisions on California’s highways. Primarily, the intent is to ensure every truck terminal throughout the state is inspected by the California Highway Patrol (CHP) on a regular basis, thereby creating a level field for all motor carriers statewide.

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Commercial Driver Traffic Violations and Future Crash Likelihood

A recent research study conducted by the American Transportation Research Institute concluded the following:

If a Commercial Vehicle driver had a….

 

Their Future Crash Likelihood Increases:

 

Reckless Driving violation

 

325%

Improper Turns violation

 

105%

Improperor Erratic Lane Change conviction

100%

Failure to Yield Right of Way conviction

 

97%

Improper Turn conviction

 

94%

Failure to Keep in Proper Lane conviction

 

91%

Improper Lane Change violation

 

78%

Failure to Yield Right of Way violation

70%

Driving Too Fast for Conditions conviction

62%

Any conviction

56%

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WHAT IS CSAT?

English: Logo of the United States Federal Mot...

CONTROLLED SUBSTANCES AND ALCOHOL TESTING LEGISLATIVE AUTHORITY

Section 34520 of the California Vehicle Code requires motor carriers and drivers to comply with the controlled substances and alcohol testing (CSAT) regulations of the Federal Motor Carrier Safety Administration.  These regulations are found in Title 49 of the Code of Federal Regulations (49 CFR) Part 382.  The complete text of the regulations may be viewed using the Internet at:  www.fmcsa.dot.gov.

The regulations call for an employer-based CSAT program.  Employers of commercial drivers are responsible to conduct a program intended to identify drivers of commercial vehicles who are using controlled substances, or abusing alcohol while on duty, and stop them from driving until the driver successfully completes a rehabilitation and return-to-duty testing program  This requirement includes an individual who is self employed, commonly known as an owner­ operator.

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Are You Following Fair Credit Reporting Act (FCRA) Rules?

Proper Adverse Action procedures benefit the employer and the applicant/employee.  By ensuring this process is in place and occurs, the employer will avoid fines, penalties and lawsuits occurring at an alarming rate.  The applicant/employee can ensure their information is correct and contest any inaccurate data.  If inaccurate data is on the report, a full investigation is conducted and the report is updated.   This is also the law.  If your company is not following the below procedures, we highly suggest you work with legal counsel to update the process as soon as possible.  Feel free to contact us with any questions. 

Best practices include:

Before a report is requested:

In a document that is separate from the job application, provide the applicant:

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Ten legal mistakes emerging companies make

The attorneys of Wendel Rosen’s Technology Practice Group have compiled this list of 10 common mistakes they’ve seen in the trenches. Smart companies will take the time to address these issues early in formation to prevent a future situation that could turn into a company killer.  

  1. Choosing the Wrong Type of Entity

A big decision prospective company founders face is determining the type of entity formation their company should take – a “C” corporation, an “S” corporation or a limited liability company (LLC). In a nutshell, LLCs and “S” corporations have significant tax advantages. However, “S” corps can offer only a single class of common stock. That eliminates them as an alternative for most fast-growing tech companies, since investors typically want a different class of stock than those desired by company founders and employees.

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Prevailing parties in meal and rest break actions not entitled to recover attorney’s fees (kirby v. immoos fire protection, inc.)

English: Seal of the Supreme Court of California

In Kirby v. Immoos Fire Protection, Inc.1 ― issued on the heels of the long-awaited Brinker decision2 ― the California Supreme Court unanimously held that a prevailing party in a Mobile Lawsuitsmeal and rest break action is not entitled to recover attorney’s fees.  

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