GATHERING INFORMATION
ABOUT EMPLOYEES AND JOB
APPLICANTS
Legal Risks and Implications
Presented by
Michael K. Ligorano
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
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?
Sources of Privacy Rights
•
•
•
•
Federal Constitution
State Constitutions
Privacy Statutes
Privacy Rights created by Contract
Common Law Privacy Rights
• Intrusion upon seclusion
• Public disclosure of private facts
• False light
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
Types of Discrimination
•
•
•
•
•
Race and Color Discrimination
National Origin Discrimination
Citizenship
Sex Discrimination
Age Discrimination
Types of Discrimination (Cont’d)
•
•
•
•
•
Religious Discrimination
Handicap/Disability Discrimination
The Federal Bankruptcy Act
Sexual Orientation
Union Membership
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
Various Kinds of Background
Checks
•
•
•
•
•
•
•
Employment check
Education check
Driver check
Social Security check
Credit check
License check
Criminal check
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
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
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
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
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
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
The Vail Letter
Reference and Background
Checks
• State Police Criminal Background
Checks
• Responding to Requests for References
• Employee Republication
– The “Provocative Decoy”
Reference and Background
Checks (Cont’d)
• Statutory Regulation of References
• Access to Employee Personnel Files
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)
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
Employment Eligibility
Documentation
I-9’s and the law
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Michael K. Ligorano
mkligorano@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., 1978
Rutgers University, B.A. cum laude, 1975