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Criminal Records Background Check Webinar

Criminal Records & Employment Background Checks (Webinar Recap)

On July 25, 2018, I presented a complimentary webinar called “Criminal Records & Employment Background Checks.” For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

Click here to watch the webinar now.

In the webinar, I discuss:

  • Ban-the-Box Laws
  • Fair Credit Reporting Act Compliance
  • Discrimination Claims
  • And more

The webinar focuses on New York employers. All topics covered potentially apply to public and private organizations, including governmental entities and non-profits.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “Criminal Records & Employment Background Checks”

There are many procedural requirements related to the use of criminal records in hiring. Even if you’re already using background checks, you should make sure you’re following all the right steps.

The penalties can be severe if you miss any required elements. Or if you improperly exclude a candidate based on a criminal conviction.

Learn how to cover your legal bases while using criminal records in hiring here.

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Polygraph Testing Employee

Polygraph Testing at Work

The Employee Polygraph Protection Act (EPPA) is a federal law that regulates the use of polygraphs, or lie detector tests, in the workplace. Under the EPPA, most employers cannot use polygraphs, including for pre-employment screening.

The U.S. Department of Labor’s Wage and Hour Division enforces the EPPA. The EPPA covers most private employers but not government agencies. Covered employers cannot require a lie detector test as a condition of employment or make an employment decision based on polygraph results.

Are Polygraphs Accurate?

Polygraphs work by recording blood pressure, pulse rates, respiration, and skin conductivity while the examiner asks a series of questions. The idea behind a polygraph is that telling the truth and lying will produce different physiological responses. However, there are no universal physiological responses associated with lying. Furthermore, many factors such as anxiety, heart conditions, cultural differences, and the influence of drugs can affect results. There have been lawsuits over the accuracy of test results. For these reasons, polygraphs are not admissible in most courts, and the EPPA strictly limits their use in employment.

Exceptions to the EPPA

The EPPA does not cover any federal, state, or local government agencies. Government agencies that use polygraph examinations include the FBI, NSA, and CIA. Many police departments also administer polygraph tests to applicants.

There are also exceptions in the private sector. The law allows certain security firms such as armored car, alarm, and guard companies, to administer polygraphs to applicants. It also allows exceptions for certain organizations associated with pharmaceuticals.

Covered employers may be able to administer polygraphs to employees under a specific circumstance. In private firms, employers may polygraph test employees whom they reasonably suspect to be involved in a workplace incident that resulted in an economic loss or injury to the organization. “Workplace incidents” include theft and embezzlement. However, some state laws may prohibit polygraph testing employees altogether.

The EPPA imposes strict standards when allowing polygraph examinations. There are specific regulations for the pre-test, testing, and post-testing phases. The examiner must be licensed if required by the state in which they will conduct the test. The examiner must also have professional liability coverage.

EPPA Penalties

In addition to the above regulations, the EPPA also requires employers to display a poster explaining the law in the workplace and strictly limits disclosure of polygraph results. An employer that violates the EPPA may incur up to $10,000 in fines for each infraction.

Polygraph Alternatives

Since employers cannot make applicants take lie detector tests, they use other means to evaluate honesty. These can include checking references and reviewing criminal records. These methods also implicate legal parameters.

Click here for more on Employment Background Checks.

NLRB Charges Unfair Labor Practice

NLRB Charges: What’s an Unfair Labor Practice?

The National Labor Relations Board’s General Counsel (through Regional Offices) investigates violations of the National Labor Relations Act.  An Unfair Labor Practice (ULP) occurs when an employer or union violates Section 8 of the Act. Those affected by these violations, including nonunion employees, can bring NLRB charges against the offending party. The NLRB receives 20,000 to 30,000 charges a year from employers, employees, and unions. Employers should be aware of the most common board charges to help them reduce the chance of receiving one.

Common NLRB Charges Against Employers

Employers incur NLRB charges by interfering with employee rights to engage in concerted or union activity and engaging in “bad faith” collective bargaining. Common allegations against employers include threatening or disciplining employees for union activity and promises of certain benefits in exchange for employees not to engage in union activity. In collective bargaining, common allegations against employers include refusals to provide requested information, bargaining in “bad faith,” and attempting to negotiate directly with employees.

To lessen the chance of receiving charges, employers should train managers in complying with the Act. Furthermore, charges of “bad faith” bargaining do not mean employers cannot take a hard stance in negotiations or leave the bargaining table. However, an employer cannot bargain with no intention of actually reaching a deal.

It is also important for employers to be aware that the balance between employer and employee rights under the NLRB tends to fluctuate based on the political climate in Washington.

Common NLRB Charges Against Unions

Charges against unions are less common than allegations against employers. Common charges against unions include failure to represent an employee in a grievance and failure to bargain in “good faith”. It is also common for charges against unions to allege illegal coercion of employees, illegal picketing, secondary boycotts, and discrimination against employees. Both employers and employees can bring charges against unions.

Investigation Process

Once a charge is filed, the General Counsel investigates the allegation to determine whether there is reasonable cause to issue a complaint or dismiss the charge. The investigation is delegated to the Regional Director of the area where the alleged violation occurred, assuming the parties involved fall under NLRB jurisdiction. If the Regional Director decides to issue a complaint, an Administrative Law Judge will hear the case. As shown in the chart below, most charges result in withdrawal or settlement.

NLRB Charges Chart

The NLRB encourages voluntary resolution throughout the investigation process. This includes an alternative dispute resolution (ADR) program which aids in settlement through mediation and arbitration. The NLRB recently announced an initiative to be more proactive in encouraging parties to participate in ADR.

Potential Consequences of NLRB Charges

In some cases, the NLRB’s General Counsel can seek a temporary injunction under Section 10(j) of the Act. Temporary injunctions are intended to stop ULPs and irreparable harm to employees during the litigation process. The Act defines 15 categories of labor disputes where temporary injunctions are appropriate, including secondary boycotts and hot cargo agreements. Temporary injunctions cease once the NLRB decides the case.

If the NLRB ultimately finds a violation, it can order reinstatement of employees, pay back pay, or other make-whole remedies. It can also issue informational remedies, such as requiring an employer to post notices in the workplace. The NLRB cannot assess pure penalties under the Act.  It has no statutory power to enforce its decisions directly, but can seek enforcement through the federal court system.

The consequences of a charge also include the time and money spent during the investigation, adjudication, and litigation processes.


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