Background Checks: Update Your FCRA Summary of Consumer Rights

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On May 24, 2018,  President Trump signed the Economic Growth, Regulatory Relief, and Consumer Protection Act into law.  Among other things, the Act requires credit reporting agencies to provide a free “national security freeze” to consumers to protect from identity theft.

Now, if the Fair Credit Reporting Act requires businesses to issue a Summary of Consumer Rights or a Consumer Identity Theft Rights notice, it must contain language advising the recipient of their security freeze rights. 

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U.S. Department of Labor Updated FMLA Forms (Finally)

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The Department of Labor has now updated its FMLA forms that expired, by their own terms, on May 31, 2018.  Because it was late, the DoL extended the viability of the old forms through June 2018 and then through August 2018.  Apart from the new expiration date on the forms, there does not appear to be any substantive change to the forms, which begs the question:  Why did it take so long?  In any event,

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U.S. Supreme Court Upholds Class Action Waivers in Arbitration Agreements

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Yesterday, May 21, 2018, the United States Supreme Court finally resolved a split among the federal circuit courts regarding whether the National Labor Relations Act (“NLRA”) prohibits businesses from requiring employees to sign arbitration agreements that waive their right to engage in a class action against their employer.  Epic Systems Corp. v. Lewis (No. 16–285).

At issue were two federal laws that appear to conflict with one another.

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Federal Court Invalidates DoL’s Proposed Overtime Rule

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In November 2016, a federal district court in Texas granted a preliminary injunction against the imposition of the Department of Labor’s effort to change the white collar exemptions to overtime rules. The rule would have effectively doubled the salary requirement to maintain an exemption: from $455 per week to $913 per week.

The DoL appealed the injunction, but on August 31, 2017, it lost its appeal on summary judgment. Further, and more importantly,

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New I-9 Form: Deadline September 18, 2017

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The United States Citizenship and Immigration Services (“USCIS”) has issued a new form I-9 for all employers.  Companies may begin using the new form now, but must begin using the new form by September 18, 2017.  All collection and retention rules for existing I-9 forms remain in effect.  A few changes were made to the list of acceptable documents in List C, and a few form instructions were revised.  

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United States House Passes Comp Time Bill 1180

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This week, the United States House of Representatives passed House Bill 1180, which would allow private employers to offer employees compensatory time off (“comp time”) in lieu of paying them overtime for hours worked in excess of forty in any one workweek. Under this bill, comp time could be accrued at 1.5 hours for each hour of overtime worked in a workweek. Most public sector employees have had this benefit since 1985.

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Idaho Legislative Update

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As you are aware, the Idaho Legislature is in session and considering new legislation. It is considering several employment and labor bills, but only a few of those under current consideration may affect private businesses in Idaho.

The first, House Bill 71, seeks to amend the law pertaining to discrimination by making it unlawful to inquire about a prospective employee’s past salary history. The statement of purpose for the bill reads as follows:

A wage gap persists nationally,

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9th Circuit Court of Appeals Rules Against Employer in FCRA Case

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On January 20, 2017, the 9th Circuit Court of Appeals, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Oregon, and Washington, reversed a district court’s dismissal of the plaintiff’s Fair Credit Reporting Act (“FCRA”) claim against an employer.

The Court, in Syed v. M-I, LLC, held that a prospective employer violates the FCRA when it procures a job applicant’s consumer report after including a liability waiver in the same document as a statutorily mandated disclosure.

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Labor’s Attack Against Idaho’s Right to Work Law Fails

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On August 31, 2016, I reported on a case before the Idaho Federal District Court, in which the International Union of Operating Engineers attacked Idaho’s right to work law on 5th Amendment “takings” and preemption grounds.  Late last month, U.S. District Judge Howard J. Lodge ruled that the National Labor Relations Act does not preempt Idaho’s right to work law and that there was no unlawful taking of union dues by forcing unions to represent workers who don’t pay union dues.  

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