GATHERING INFORMATION GATHERING INFORMATION ABOUT EMPLOYEES AND ABOUT EMPLOYEES AND

JOB APPLICANTSJOB APPLICANTS

Legal Risks and ImplicationsLegal Risks and Implications

Presented byPresented by

Michael K. LigoranoMichael K. Ligorano

An Overview of Employee Privacy An Overview of Employee Privacy Principles and Selected Principles and Selected

Developments in the LawDevelopments in the Law

• Sources of Privacy Rights:Sources of Privacy Rights:– Constitutions (federal and state)Constitutions (federal and state)– Statutes (federal and state)Statutes (federal and state)– ContractContract– State common lawState common law

The General AnalysisThe General Analysis

• In privacy cases, three main issues are In privacy cases, three main issues are balanced:balanced:– Were the employer’s actions legitimate?Were the employer’s actions legitimate?– Did the employee have a reasonable Did the employee have a reasonable

expectation of privacy?expectation of privacy?– How invasive was the employer’s intrusion?How invasive was the employer’s intrusion?

Sources of Privacy RightsSources of Privacy Rights

• Federal ConstitutionFederal Constitution

• State ConstitutionsState Constitutions

• Privacy StatutesPrivacy Statutes

• Privacy Rights created by ContractPrivacy Rights created by Contract

Common Law Privacy RightsCommon Law Privacy Rights

• Intrusion upon seclusionIntrusion upon seclusion

• Public disclosure of private factsPublic disclosure of private facts

• False lightFalse light

Specific Employment Specific Employment Discrimination ConsiderationsDiscrimination Considerations

• The key to effective and lawful The key to effective and lawful interviewing is to ask job related questions. interviewing is to ask job related questions. Appropriate questions are those which help Appropriate questions are those which help determine whether the candidate is qualified determine whether the candidate is qualified for the jobfor the job

Types of DiscriminationTypes of Discrimination

• Race and Color DiscriminationRace and Color Discrimination

• National Origin DiscriminationNational Origin Discrimination

• CitizenshipCitizenship

• Sex DiscriminationSex Discrimination

• Age DiscriminationAge Discrimination

Types of Discrimination Types of Discrimination (Cont’d)(Cont’d)

• Religious DiscriminationReligious Discrimination

• Handicap/Disability DiscriminationHandicap/Disability Discrimination

• The Federal Bankruptcy ActThe Federal Bankruptcy Act

• Sexual OrientationSexual Orientation

• Union MembershipUnion Membership

Employer Investigations: Employer Investigations: References and other Background References and other Background

ChecksChecks• Privacy issues are implicated in response to Privacy issues are implicated in response to

the following types of employer the following types of employer investigationsinvestigations– Reference checksReference checks– Credit checksCredit checks– Background checks and applicant Background checks and applicant

investigationsinvestigations

Various Kinds of Background Various Kinds of Background ChecksChecks

• Employment checkEmployment check• Education checkEducation check• Driver checkDriver check• Social Security checkSocial Security check• Credit checkCredit check• License checkLicense check• Criminal checkCriminal check

The Fair Credit Reporting ActThe Fair Credit Reporting Act

• The FCRA is designed primarily to protect The FCRA is designed primarily to protect the privacy of consumer report information the privacy of consumer report information and to guarantee that the information and to guarantee that the information supplied by consumer reporting agencies is supplied by consumer reporting agencies is as accurate as possibleas accurate as possible

The Fair Credit Reporting Act The Fair Credit Reporting Act (Cont’d)(Cont’d)

• What is a Consumer Report?What is a Consumer Report?– A consumer report contains information about A consumer report contains information about

your personal and credit characteristics, your personal and credit characteristics, character, reputation, and lifestyle. To be character, reputation, and lifestyle. To be covered by the FCRA, a report must be prepared covered by the FCRA, a report must be prepared by a consumer reporting agency (CRA)- a by a consumer reporting agency (CRA)- a business that assembles such reports for other business that assembles such reports for other businessesbusinesses

The Fair Credit Reporting Act The Fair Credit Reporting Act (Cont’d)(Cont’d)

• Investigative consumer reportsInvestigative consumer reports– Reports that include interviews with an Reports that include interviews with an

applicant’s or employee’s friends, neighbors, applicant’s or employee’s friends, neighbors, and associatesand associates

Key Provisions of the FCRAKey Provisions of the FCRA

• Written Notice and AuthorizationWritten Notice and Authorization– Before you can get a consumer report for Before you can get a consumer report for

employment purposes, you must notify the employment purposes, you must notify the individual in writing-in a document consisting individual in writing-in a document consisting solely of this notice-that a report may be used solely of this notice-that a report may be used

– You also must get the person’s written You also must get the person’s written authorization before you ask a CRA for the reportauthorization before you ask a CRA for the report

Adverse Action ProceduresAdverse Action Procedures

• If you rely on a consumer report for an If you rely on a consumer report for an “adverse action” – denying a job “adverse action” – denying a job application, reassigning or terminating an application, reassigning or terminating an employee, or terminating an employee, or employee, or terminating an employee, or denying a promotiondenying a promotion

Adverse Action Procedures Adverse Action Procedures (Cont’d)(Cont’d)

• Step 1Step 1– Before you take the adverse action, you must give the Before you take the adverse action, you must give the

individual a pre-adverse action disclosureindividual a pre-adverse action disclosure

• Step 2Step 2– After you’ve taken an adverse action, you must give the After you’ve taken an adverse action, you must give the

individual notice-orally, in writing, or electronically- individual notice-orally, in writing, or electronically- that the action has been taken in an adverse action that the action has been taken in an adverse action noticenotice

The Vail LetterThe Vail Letter

Reference and Background Reference and Background ChecksChecks

• State Police Criminal Background State Police Criminal Background ChecksChecks

• Responding to Requests for ReferencesResponding to Requests for References

• Employee RepublicationEmployee Republication– The “Provocative Decoy”The “Provocative Decoy”

Reference and Background Reference and Background Checks Checks (Cont’d)(Cont’d)

• Statutory Regulation of ReferencesStatutory Regulation of References

• Access to Employee Personnel FilesAccess to Employee Personnel Files

Employee and Applicant Employee and Applicant TestingTesting

• Medical TestingMedical Testing

• Drug and Alcohol TestingDrug and Alcohol Testing– U.S. Constitution protectionsU.S. Constitution protections

– State Constitutional issuesState Constitutional issues

– Collective Bargaining issuesCollective Bargaining issues

– The ADAThe ADA

– New Jersey Law on Drug TestingNew Jersey Law on Drug Testing• Hennessey v. Costal Eagle Point Oil Co.Hennessey v. Costal Eagle Point Oil Co., 129 N.J. 81 (1992), 129 N.J. 81 (1992)

Employee and Applicant TestingEmployee and Applicant Testing(Cont’d)(Cont’d)

• Lie Detector TestsLie Detector Tests

– The Employee Polygraph Protection Act of 1988, The Employee Polygraph Protection Act of 1988, 29 U.S.C. 29 U.S.C. §2001 §2001 et. seq.et. seq.

– New Jersey Lie Detector Act, N.J.S.A. 2C:40A-1New Jersey Lie Detector Act, N.J.S.A. 2C:40A-1

Employment Eligibility Employment Eligibility DocumentationDocumentation

I-9’s and the lawI-9’s and the law

Immigration Reform & Immigration Reform & Control ActControl Act

• IRCA was passed in 1986, requiring all employers IRCA was passed in 1986, requiring all employers to complete an Employment Eligibility Form (I-9) to complete an Employment Eligibility Form (I-9) for every new employeefor every new employee

• The reasoning was that requiring proof of The reasoning was that requiring proof of eligibility to work in the United States would deter eligibility to work in the United States would deter illegal immigration illegal immigration

Employee Must Provide:Employee Must Provide:

• Documentation that he/she is eligible to workDocumentation that he/she is eligible to work

• Proof that his/her identity matches the work Proof that his/her identity matches the work eligibility documentseligibility documents

• Can be accomplished with one “List A” document Can be accomplished with one “List A” document or one “List B” and one “List C” documentor one “List B” and one “List C” document

List A DocumentsList A Documents

• Unexpired foreign passport with I-551 stamp or attached Unexpired foreign passport with I-551 stamp or attached INS Form I-94 indicating unexpired employment INS Form I-94 indicating unexpired employment authorizationauthorization

• Alien Registration Receipt Card with photoAlien Registration Receipt Card with photo

• Unexpired Temporary Resident CardUnexpired Temporary Resident Card

• Unexpired Employment Authorization CardUnexpired Employment Authorization Card

• Unexpired Employment Authorization Document issued Unexpired Employment Authorization Document issued by the INS containing a photographby the INS containing a photograph

List B List B Documents that Establish IdentityDocuments that Establish Identity

• Driver’s license or ID card issued by a state or US Driver’s license or ID card issued by a state or US possession which containspossession which contains– Photograph, orPhotograph, or

– Name, birth date, sex, height, eye color, addressName, birth date, sex, height, eye color, address

• ID card issued by federal, state, or local government ID card issued by federal, state, or local government agencies or entities, containingagencies or entities, containing– Photograph, orPhotograph, or

– Name, birth date, sex, height, eye color, addressName, birth date, sex, height, eye color, address

List B Documents List B Documents (Cont’d)(Cont’d)

• School ID card with photographSchool ID card with photograph• Voter’s registration cardVoter’s registration card• US Military card or draft recordUS Military card or draft record• Military dependent’s ID cardMilitary dependent’s ID card• US Coast Guard Merchant Mariner CardUS Coast Guard Merchant Mariner Card• Native American tribal documentNative American tribal document• Driver’s license issued by Canadian government Driver’s license issued by Canadian government

authorityauthority

List B Documents List B Documents (Cont’d)(Cont’d)

• For persons under age 18 who are unable to For persons under age 18 who are unable to present any of the above:present any of the above:– School record or report cardSchool record or report card– Clinic, doctor, or hospital recordClinic, doctor, or hospital record– Day-care or nursery school recordDay-care or nursery school record

List C Documents that Establish List C Documents that Establish Employment EligibilityEmployment Eligibility

• US social security cardUS social security card– Except if states “not valid for employment”Except if states “not valid for employment”

• Certification of Birth Abroad issued by Dept. of Certification of Birth Abroad issued by Dept. of StateState

• Original or certified copy of a US birth Original or certified copy of a US birth certificate, bearing an official sealcertificate, bearing an official seal

• Native American tribal documentNative American tribal document

List C Documents List C Documents (Cont’d)(Cont’d)

• US Citizen ID card (INS form I-197)US Citizen ID card (INS form I-197)

• ID Card for use of Resident Citizen in the ID Card for use of Resident Citizen in the US (INS form I-179)US (INS form I-179)

• Unexpired employment authorization Unexpired employment authorization document issued by the INS, other than document issued by the INS, other than those listed in List Athose listed in List A

DiscriminationDiscrimination

• Documentation must only be requested after Documentation must only be requested after job offer is madejob offer is made

• Employer cannot request specific documents, Employer cannot request specific documents, the applicant must decidethe applicant must decide

• If new hire provides more documentation than If new hire provides more documentation than required, employer must have the new hire required, employer must have the new hire select only the necessary documentsselect only the necessary documents

Completing the I-9Completing the I-9

• New hire completes Section 1 no later than the day New hire completes Section 1 no later than the day employment commences and provides employer employment commences and provides employer with original documentation from either List A OR with original documentation from either List A OR both List B and List Cboth List B and List C

• Employer reviews Section 1 for completeness and Employer reviews Section 1 for completeness and documents for authenticity and completes Section 2 documents for authenticity and completes Section 2 within three business days of the start datewithin three business days of the start date

Re-verification/RehiresRe-verification/Rehires

• Employer must complete Section 3 when an Employer must complete Section 3 when an employee’s eligibility documentation has employee’s eligibility documentation has expired or when it is rehiring an employee expired or when it is rehiring an employee and the original I-9 is still in its possessionand the original I-9 is still in its possession

• Employee must present documentation from Employee must present documentation from either List A or List C for re-verificationeither List A or List C for re-verification

Missing/Deficient FormsMissing/Deficient Forms

• If an I-9 is discovered missing, immediately If an I-9 is discovered missing, immediately complete one and attach an explanatory complete one and attach an explanatory note for your recordsnote for your records

• If an I-9 is deficient, immediately correct If an I-9 is deficient, immediately correct and initial/date any changesand initial/date any changes

• NO WHITE OUTNO WHITE OUT

Missing DocumentationMissing Documentation

• If an employee cannot provide the If an employee cannot provide the necessary credentials, he/she should be necessary credentials, he/she should be terminated terminated

• Employer is subject to fines for knowingly Employer is subject to fines for knowingly employing someone who is unauthorizedemploying someone who is unauthorized

Acquisitions/MergersAcquisitions/Mergers

• If a business is acquired by another, the new If a business is acquired by another, the new employer must obtain the I-9s of the acquired employer must obtain the I-9s of the acquired entity and will be held responsible for any entity and will be held responsible for any deficient forms deficient forms

• New I-9 forms do not have to be completed, New I-9 forms do not have to be completed, but should be thoroughly reviewed for but should be thoroughly reviewed for compliancecompliance

Contract EmployeesContract Employees

• Companies are not required to maintain I-9s for contract Companies are not required to maintain I-9s for contract employeesemployees

• The contractor is responsible for completing I-9s for its The contractor is responsible for completing I-9s for its own employeesown employees

• Employers must not contract labor to avoid directly hiring Employers must not contract labor to avoid directly hiring unauthorized aliensunauthorized aliens

• Knowingly using a contractor that employs unauthorized Knowingly using a contractor that employs unauthorized aliens will result in employer sanctionsaliens will result in employer sanctions

Retention of FormsRetention of Forms

• I-9 forms must be retained during the term I-9 forms must be retained during the term of employment, andof employment, and– One year following the employee’s termination, One year following the employee’s termination,

oror– For at least three yearsFor at least three years

WHICHEVER IS LATERWHICHEVER IS LATER

Employer SanctionsEmployer Sanctions

• Employing Unauthorized Aliens:Employing Unauthorized Aliens:– 11stst offense: $250-$2,000 per alien offense: $250-$2,000 per alien

– 22ndnd offense: $2,000-$5,000 per alien offense: $2,000-$5,000 per alien

– Additional offenses: $3,000 to $10,000 per alienAdditional offenses: $3,000 to $10,000 per alien

• Improperly completed, retained, or missing Improperly completed, retained, or missing I-9s:I-9s:– $100-$1,000 per employee$100-$1,000 per employee

Employer Sanctions Employer Sanctions (Cont’d)(Cont’d)

• Knowingly hiring or continuing to employ Knowingly hiring or continuing to employ unauthorized aliens:unauthorized aliens:– Up to $3,000 per unauthorized alienUp to $3,000 per unauthorized alien– Imprisonment (if convicted)Imprisonment (if convicted)

• Participating in document fraud:Participating in document fraud:– 11stst offense: $250-$2,000 offense: $250-$2,000– Additional offenses: $2,000-$5,000Additional offenses: $2,000-$5,000

Employer Sanctions Employer Sanctions (Cont’d)(Cont’d)

• Discrimination:Discrimination:– 11stst offense: $250-$2,000 per individual offense: $250-$2,000 per individual– 22ndnd offense: $2,000-$5,000 per individual offense: $2,000-$5,000 per individual– Additional offenses: $3,000-$10,000Additional offenses: $3,000-$10,000

• Requesting specific documentation:Requesting specific documentation:– $100-$1,000 per individual$100-$1,000 per individual

Michael K. Ligoranomkligorano@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