Lexology (03/14/12) Ed Magarian; Jillian Kornblatt

Experts say businesses that contract with staffing firms to engage workers with access to consumer identity information should ensure the staffing firm conducts background checks for employees placed at their company, and the background checks should be similar to those performed on their permanent employees. The contract should state the method and conditions under which the staffing firm discloses negative information uncovered by the background check prior to placing a temporary worker and the type of approval granted by the employer before placement occurs.

Although employers may avoid liability for certain acts committed by temporary workers employed by a staffing firm, they may still be found liable if they were negligent in selecting the staffing firm that conducted the background check or fail to exercise appropriate oversight or training of the temporary worker. Employers also must comply with laws governing the use of information gleaned from pre-employment background checks.

Lexology (03/15/12) Dawn Lurie

Investigations by the U.S. Office of Special Counsel for Immigration-Related Unfair Employment Practices should be taken seriously, and companies contacted by the OSC should immediately hire experienced immigration attorneys and assess potential liability at additional sites, if applicable. The initial investigation will be completed within 120 days, by which time the OSC determines whether to dismiss the charge or investigate for an additional 90 days.

Internal reviews of employment verification practices should be central to companies’ compliance strategies. Companies must make sure they follow the Immigration and Nationality Act’s antidiscrimination provisions and treat all workers the same by not arbitrarily requiring workers to provide new or updated Form I-9 information or document copies.

Lexology (03/16/12) Cori Stirling

Many employers have created nonfraternization and social media policies to regulate various aspects of employees’ personal conduct. However, depending on the breadth of the written policies, these policies may have the unintended consequence of prohibiting conduct other than romantic relationships or derogatory comments, which may cause unwanted legal ramifications for the employer under the National Labor Relations Act. Also, implementation of nonfraternization policies and social media policies may result in unhappy employees, which in turn could lead to discrimination lawsuits and claims.

To avoid such potential legal difficulties, employers seeking to adopt these policies must ensure their policies are carefully crafted. Section 7 of the NLRA gives employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. A work policy that may chill employees in the exercise of these rights could violate the NLRA, so having narrowly tailored nonfraternization and social media policies is critical. Even if the employer has perfectly crafted nonfraternization and social media policies, the policies may still result in liability under discrimination law if not enforced properly. The key to overcoming allegations of discrimination is to enforce the policy consistently, so that no employee can successfully allege being singled out for enforcement based upon a protected status.