GATHERING INFORMATION ABOUT EMPLOYEES AND JOB APPLICANTS

1. GATHERING INFORMATION ABOUT EMPLOYEES AND JOB APPLICANTS Legal Risks and Implications Presented by Michael K. Ligorano

2. An Overview of Employee Privacy Principles and Selected Developments in the Law • Sources of Privacy Rights: • Constitutions (federal and state) • Statutes (federal and state) • Contract • State common law

3. The General Analysis • In privacy cases, three main issues are balanced: • Were the employer’s actions legitimate? • Did the employee have a reasonable expectation of privacy? • How invasive was the employer’s intrusion?

4. Sources of Privacy Rights • Federal Constitution • State Constitutions • Privacy Statutes • Privacy Rights created by Contract

5. Common Law Privacy Rights • Intrusion upon seclusion • Public disclosure of private facts • False light

6. Specific Employment Discrimination Considerations • The key to effective and lawful interviewing is to ask job related questions. Appropriate questions are those which help determine whether the candidate is qualified for the job

7. Types of Discrimination • Race and Color Discrimination • National Origin Discrimination • Citizenship • Sex Discrimination • Age Discrimination

8. Types of Discrimination (Cont’d) • Religious Discrimination • Handicap/Disability Discrimination • The Federal Bankruptcy Act • Sexual Orientation • Union Membership

9. Employer Investigations: References and other Background Checks • Privacy issues are implicated in response to the following types of employer investigations • Reference checks • Credit checks • Background checks and applicant investigations

10. Various Kinds of Background Checks • Employment check • Education check • Driver check • Social Security check • Credit check • License check • Criminal check

11. The Fair Credit Reporting Act • The FCRA is designed primarily to protect the privacy of consumer report information and to guarantee that the information supplied by consumer reporting agencies is as accurate as possible

12. The Fair Credit Reporting Act (Cont’d) • What is a Consumer Report? • A consumer report contains information about your personal and credit characteristics, character, reputation, and lifestyle. To be covered by the FCRA, a report must be prepared by a consumer reporting agency (CRA)- a business that assembles such reports for other businesses

13. The Fair Credit Reporting Act (Cont’d) • Investigative consumer reports • Reports that include interviews with an applicant’s or employee’s friends, neighbors, and associates

14. Key Provisions of the FCRA • Written Notice and Authorization • Before you can get a consumer report for employment purposes, you must notify the individual in writing-in a document consisting solely of this notice-that a report may be used • You also must get the person’s written authorization before you ask a CRA for the report

15. Adverse Action Procedures • If you rely on a consumer report for an “adverse action” – denying a job application, reassigning or terminating an employee, or terminating an employee, or denying a promotion

16. Adverse Action Procedures (Cont’d) • Step 1 • Before you take the adverse action, you must give the individual a pre-adverse action disclosure • Step 2 • After you’ve taken an adverse action, you must give the individual notice-orally, in writing, or electronically- that the action has been taken in an adverse action notice

17. The Vail Letter

18. Reference and Background Checks • State Police Criminal Background Checks • Responding to Requests for References • Employee Republication • The “Provocative Decoy”

19. Reference and Background Checks (Cont’d) • Statutory Regulation of References • Access to Employee Personnel Files

20. Employee and Applicant Testing • Medical Testing • Drug and Alcohol Testing • U.S. Constitution protections • State Constitutional issues • Collective Bargaining issues • The ADA • New Jersey Law on Drug Testing • Hennessey v. Costal Eagle Point Oil Co., 129 N.J. 81 (1992)

21. Employee and Applicant Testing(Cont’d) • Lie Detector Tests • The Employee Polygraph Protection Act of 1988, 29 U.S.C. §2001 et. seq. • New Jersey Lie Detector Act, N.J.S.A. 2C:40A-1

22. Employment Eligibility Documentation I-9’s and the law

23. Immigration Reform & Control Act • IRCA was passed in 1986, requiring all employers to complete an Employment Eligibility Form (I-9) for every new employee • The reasoning was that requiring proof of eligibility to work in the United States would deter illegal immigration

24. Employee Must Provide: • Documentation that he/she is eligible to work • Proof that his/her identity matches the work eligibility documents • Can be accomplished with one “List A” document or one “List B” and one “List C” document

25. List A Documents • Unexpired foreign passport with I-551 stamp or attached INS Form I-94 indicating unexpired employment authorization • Alien Registration Receipt Card with photo • Unexpired Temporary Resident Card • Unexpired Employment Authorization Card • Unexpired Employment Authorization Document issued by the INS containing a photograph

26. List B Documents that Establish Identity • Driver’s license or ID card issued by a state or US possession which contains • Photograph, or • Name, birth date, sex, height, eye color, address • ID card issued by federal, state, or local government agencies or entities, containing • Photograph, or • Name, birth date, sex, height, eye color, address

27. List B Documents (Cont’d) • School ID card with photograph • Voter’s registration card • US Military card or draft record • Military dependent’s ID card • US Coast Guard Merchant Mariner Card • Native American tribal document • Driver’s license issued by Canadian government authority

28. List B Documents (Cont’d) • For persons under age 18 who are unable to present any of the above: • School record or report card • Clinic, doctor, or hospital record • Day-care or nursery school record

29. List C Documents that Establish Employment Eligibility • US social security card • Except if states “not valid for employment” • Certification of Birth Abroad issued by Dept. of State • Original or certified copy of a US birth certificate, bearing an official seal • Native American tribal document

30. List C Documents (Cont’d) • US Citizen ID card (INS form I-197) • ID Card for use of Resident Citizen in the US (INS form I-179) • Unexpired employment authorization document issued by the INS, other than those listed in List A

31. Discrimination • Documentation must only be requested after job offer is made • Employer cannot request specific documents, the applicant must decide • If new hire provides more documentation than required, employer must have the new hire select only the necessary documents

32. Completing the I-9 • New hire completes Section 1 no later than the day employment commences and provides employer with original documentation from either List A OR both List B and List C • Employer reviews Section 1 for completeness and documents for authenticity and completes Section 2 within three business days of the start date

33. Re-verification/Rehires • Employer must complete Section 3 when an employee’s eligibility documentation has expired or when it is rehiring an employee and the original I-9 is still in its possession • Employee must present documentation from either List A or List C for re-verification

34. Missing/Deficient Forms • If an I-9 is discovered missing, immediately complete one and attach an explanatory note for your records • If an I-9 is deficient, immediately correct and initial/date any changes • NO WHITE OUT

35. Missing Documentation • If an employee cannot provide the necessary credentials, he/she should be terminated • Employer is subject to fines for knowingly employing someone who is unauthorized

36. Acquisitions/Mergers • If a business is acquired by another, the new employer must obtain the I-9s of the acquired entity and will be held responsible for any deficient forms • New I-9 forms do not have to be completed, but should be thoroughly reviewed for compliance

37. Contract Employees • Companies are not required to maintain I-9s for contract employees • The contractor is responsible for completing I-9s for its own employees • Employers must not contract labor to avoid directly hiring unauthorized aliens • Knowingly using a contractor that employs unauthorized aliens will result in employer sanctions

38. Retention of Forms • I-9 forms must be retained during the term of employment, and • One year following the employee’s termination, or • For at least three years WHICHEVER IS LATER

39. Employer Sanctions • Employing Unauthorized Aliens: • 1st offense: $250-$2,000 per alien • 2nd offense: $2,000-$5,000 per alien • Additional offenses: $3,000 to $10,000 per alien • Improperly completed, retained, or missing I-9s: • $100-$1,000 per employee

40. Employer Sanctions (Cont’d) • Knowingly hiring or continuing to employ unauthorized aliens: • Up to $3,000 per unauthorized alien • Imprisonment (if convicted) • Participating in document fraud: • 1st offense: $250-$2,000 • Additional offenses: $2,000-$5,000

41. Employer Sanctions (Cont’d) • Discrimination: • 1st offense: $250-$2,000 per individual • 2nd offense: $2,000-$5,000 per individual • Additional offenses: $3,000-$10,000 • Requesting specific documentation: • $100-$1,000 per individual

42. Michael K. Ligoranomkligorano@nmmlaw.com Areas of Practice:Immigration, Real Estate and Land Use Alternative Dispute Resolution Admitted to Practice in: New Jersey, New York, Florida, U.S. District Court, District of New Jersey, U.S. Court of Appeals, Third Circuit, U.S. Supreme Court, U.S. Tax Court Education: Western New England Law School, J.D., 1978Rutgers University, B.A. cum laude, 1975