U.S. Supreme Court Report: Follow Up

June 4th - the U.S. Supreme Court held that a "willful violation" of the Fair Credit Reporting Act (FCRA) does not require actual knowledge but could encompass negligence as well. Here's what the decision practically means for employers. You should know that if you use a third-party vendor to obtain background, criminal record or other checks on applicants or employees, you are required to provide those individuals with certain notices if/when you receive any adverse information in the report. For example, let's say you receive a background check and find a prior conviction reported for an applicant. Before you decide to not hire the individual, you must send the individual a pre-adverse action notice along with a copy of the report, name, address and phone number of the company that provided you with the report. This gives the individual a reasonable period of time to notify you in case the information in the report is wrong, such as digits in the Social Security number or date of birth being transposed and the information you received is really regarding a different individual. But what if you don't send that notice because you just were not aware of this requirement? You've heard the pharse, "Ignorance of the law is no excuse?" It may well apply here. The Court held that, "Willful failure covers a violation committed in reckless disregard of the notice obligation...[w]illfulness is...generally taken to cover not only knowing violations of a standard but reckless ones as well." So dot your i's and cross your t's and be sure you have and are properly using not just the required adverse action notice but pre-adverse action notice as well!

May 29th - the U.S. Supreme Court clarified when a charge of gender discrimination tolls or begins to accrue under Title VII of the Civil Rights Act of 1964. The case was reported as pending in the December 2006 edition of this newsletter. Here's the scenario. Let's say five years ago a female employee was denied a pay increase and she believed it was discriminatory and based on her gender. Generally, an employee must file a charge with the U.S. Equal Employment Opportunity Commission within 180 or 300 days of the alleged discriminatory act. So the question became, when did the alleged discriminatory act occur? Was it when the decision was made to not grant the pay increase or did it continue with each and every subsequent paycheck? Well, on May 29th the U.S. Supreme Court answered the question and cited the former. The Court held that the alleged act does not continue with each subsequent paycheck. "[A] pay-setting decision is a discrete act that occurs at a particular point in time, and the later effects of past discrimination do not restart the clock for filing an EEOC charge."

FiveL Company to Offer Webcasts This Fall!

Will you help? FiveL Company is in the process of setting up the technology to offer educational programs via webcasts. With over 2,000 readers of this E-newsletter, I want to ensure programs are designed to meet the needs and interests of as many of you as possible. Please take just a moment to complete this brief survey and tell me a bit about when, how and what you would like when it comes to educational webcasts. While local public seminars may still be offered, webcasts will allow participants from all across the country to "attend" educational programs from the comfort of their office! Thanks and stay tuned for more information!!