Credit Reports and Employment Applications -- Don't use them

Employers should  only perform credit and consumer report checks on applicants for employment for financially sensitive positions that

require bonding. The EEOC recently sued the Kaplan Corporation for using credit checks in hiring decisions.  Kaplan argues that the job openings for which they used credit reports involved financial advice to students and that, thus, the credit information was important information about the applicants fitness for the job.  The EEOC disagrees, claiming that such credit checks have a disparate impact on minority applicants. While the EEOC’s position does not yet have the force of law, since the EEOC is the agency charged with discrimination enforcement,  until resolution of this lawsuit, a prudent employer should refrain from using credit checks in making employment decisions, whenever possible.

 

Avoiding credit checks should not be much of a hardship.  Studies have shown that poor credit ratings, in general, have no relationship to job performance.

 

If an employer feels it must run a credit check, the employer should ensure compliance with the Fair Credit Reporting Act. Generally speaking, employers need an employment purpose for obtaining a consumer credit check on applicants and employees, and must provide the employee a clear written notice of its intent to obtain such a report. The applicant or employee must then give written permission to obtain the report. This should be a stand-alone document and not part of the job application. The employer must then certify to the credit reporting agency that it has complied with the FCRA. If the applicant is turned down for the position, and information in the consumer report is a factor in the decision (even if only a minor factor, with other sufficient reasons, or even if the information wasn’t negative, but was a factor) then the employer must comply with the FCRA procedures. Generally, that requires the employer to provide adverse action notice telling the applicant why the decision was made, providing the employee or applicant with a written description of rights, providing a copy of the report, and the name and address of the reporting agency or service that provided the information. The employee or applicant can also request information about the sources used for the report and the other recipients of the report. More details can be obtained from the Federal Trade Commission’s web-site at

 

• www.ftc.gov/bcp/edu/pubs/business/credit/bus08.shtm

.

 

Jeanelle R. Lust

 

"We Help You  Deal With It."

Knudsen, Berkheimer, Richardson & Endacott, LLP

3800 VerMaas Place, Suite 200

Lincoln, NE 68502

402/475-7017  ext 1128 

402/475-8912 (fax)

402/440-3731 (cell)

 

 

Office Closing

The Knudsen Law Firm will be closed today, Monday, January 10, 2011, due to severe weather conditions.  Staff and attorneys may report if necessary, but attendance is not required.

EEOC issues regulations on GINA

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits
employers and other entities covered by GINA Title II from requesting,
requiring or purchasing genetic information of employees or their family
members. Although it has been in effect for over a year the Federal
Government just issued regulations about its application. The biggest
clarification under the rules is what constitutes acquisition of genetic
information.

According to new EEOC regulations, a request for genetic information
even includes "conducting an Internet search in a way that is likely to
result in obtaining genetic information, as well as 'actively listening'
to third-party conversations or making requests for information about an
individual's current health status in a way that is likely to result
genetic information."

There are circumstances when an employer may legitimately come into
possession of genetic information without violating GINA's prohibition
on requesting, requiring or purchasing genetic information. However,
confidentiality and prohibitions on use remain. These circumstances
include:

* Where information is acquired inadvertently. For example, a
casual reference overheard at a water cooler that an employee's mother
has breast cancer and that the employee herself has been tested for a
gene related to that, will not be a violation. Similarly, employers who
employ multiple family members will have a little more flexibility
obtaining information from one family member without that being an
offense against another family member (remember that one employee's
manifestation of disease or disorder could be the family medical history
of the brother or sister or father, mother, uncle and so on who also
works for the employer).
* Where information is acquired as part of health or genetic
services, including wellness programs. Employers are free to offer
financial and other incentives to encourage employees to participate in
wellness programs, though they cannot offer those incentives to provide
genetic information. Employees may still be provided the questionnaires
seeking the information, but must be told that they need not provide
genetic information in order to receive the incentive, and in fact, a
particular notice provided below is recommended.
* Where information is acquired in the form of family medical
history in order to comply with Family Medical Leave Act, or Nebraska or
other local leave laws, or even certain employer leave policies
requiring, for example, return to work certification.
* When information comes from sources that are commercially or
publically available, such as newspapers, books, magazines, and even
electronic sources. This exception does not apply to court records,
medical or research databases, or other sources with limited access such
as social networking sites that require a creator's permission to
access. Similarly commercially available sites an employer
intentionally accesses with intent to gather, or from which an employer
is likely to gather such genetic information are prohibited.
* Where information is gathered as part of a legitimate genetic
monitoring program required by law or provided on a voluntary basis.
For example, employers may be required to perform such tests to see if
employees are being harmed by substances or energies in the workplace.
If doing monitoring that is not required by law, proper notification and
fully informed authorization of the employee must be obtained.
Similarly, if required by OSHA or otherwise by law, certain
notifications may be required. In either case, consultation with an
attorney is likely critical before conducting such monitoring.
* Where information is conducted by employers who do DNA testing
for law enforcement purposes as a forensic lab, or for human remains
identification. Any such employee genetic information can only be used
for analysis of DNA markers for quality control, to detect sample
contamination.

Whenever lawfully requesting information from an employee that may
reveal genetic information, for example through a wellness program, to
support an ADA accommodation request, request for sick leave, FMLA or
similar certification, or otherwise, employers should include the
following notification:

"The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits
employers and other entities covered by GINA Title II from requesting or
requiring genetic information of employees or their family members. In
order to comply with this law, we are asking that you not provide any
genetic information when responding to this request for medical
information. 'Genetic information,' as defined by GINA, includes an
individual's family medical history, the results of an individual's or
family member's genetic tests, the fact that an individual or an
individual's family member sought or received genetic services, and
genetic information of a fetus carried by an individual or an
individual's family member or an embryo lawfully held by an individual
or family member receiving assistive reproductive services."

Whenever the notice is properly given it will provide a safe-harbor for
employers, and any such acquisition will be considered inadvertent, and
therefore not a GINA violation.

www.knudsenlaw.com
Jeanelle R. Lust
jlust@knudsenlaw.com

Our Pledge

At the Knudsen Law Firm, we know this is what clients want, and we
promise to deliver:

* Value. Whatever the fee arrangement is - alternate, fixed or
hourly - you will get your money's worth.
* Solutions to (and prevention of) problems, i.e., getting you out
of trouble.
* Money. Ways to save it, keep it or make it.
* Expertise in the particular area(s) of law where you need
counsel.
* Attention. You will feel that you are our most important client.

* Communication. Only bats and mushrooms like to be kept in the
dark. You won't be
* To be involved. You will be asked your opinion and have a say
in every decision.
* Timeliness. We will meet every deadline.
* Courtesy and respect. You will be treated as a person, not just
a file.
* No surprises. We will tell you what will happen and prepare you
for what might happen.

* Prompt and understandable billing.

* Prompt answers. To questions - and to any complaints.

* Guidance and counsel. On what you must or should do.
* Responsiveness.
* Advocacy.
* Follow through.

If you do not find that have met or exceeded your expectations in all of
these areas, I want to hear about it. I personally will do what it
takes to make you satisfied.

"We help you deal with it"

Change in Nursing Home Survey Process

Nebraska Implementing QIS Process.

Nebraska is moving toward implementing the QIS (Quality Indicator
Survey) process. Nebraska is part of the second group of states in
which CMS is doing this, along with Colorado and New York. Nebraska
will begin implementing the QIS process beginning August 2010.

Compared to the current, traditional, surveying system which has
information documented on paper throughout the process, each CMS team
member will use a tablet PC to document findings. These findings will
then be electronically synthesized, organized and loaded to the CMS.
When doing onsite preparation, QIS team members will analyze
alphabetical resident censuses with room numbers and units in addition
to a list of new admissions over the last thirty days. There will also
be substantial changes to offsite preparation, the initial tour process,
sample selection, and to various other aspects of the survey process.

QIS surveys will involve two stages. Each stage will involve three
steps. Step one will be "computer generated sampling". Step two will be
"investigation". Step three will be "synthesis". The first stage will
involve a preliminary investigation of regulatory areas. The second
stage will involve an in-depth investigation into deficiencies
identified in stage one.

This system will be implemented in phases across the state, using
"teams" to do one area of the state at a time. This will take two to
two and a half years to implement fully. Because it will be more
objective, driven by MDS data, and feature large sample sizes it will
likely result in a higher rate of deficiencies in place of many "FYI"
comments surveyors presently give.

<http://www.knudsenlaw.com/Att_Bio_JRL.htm>
<http://www.knudsenlaw.com/>

Jeanelle R. Lust

Knudsen, Berkheimer, Richardson & Endacott, LLP

3800 VerMaas Pl

Suite 200

Lincoln NE 68502

402 475 7011

402 440 3731 (M)

402 475 8912 (F)

www.knudsenlaw.com

jlust@knudsenlaw.com

Managing Partner

"We help you deal with it"

Lexington Public Schools receives summary judgment

Yesterday Judge Doyle in the District Court of Dawson County issued
summary judgment to the Lexington Public Schools finding the school not
liable for injuries to one of its students. The Lexington Public
Schools was represented by Jeanelle Lust of the Knudsen Law Firm.

The student alleged that she fell into a manhole on Lexington Public
School's property while participating in an out-door gym class. The
school maintained throughout the litigation that it did not know of any
defects or problems with the manhole (or in fact that a manhole was even
on its property). Judge Doyle agreed and dismissed the plaintiff's
case.

<http://www.knudsenlaw.com/Att_Bio_JRL.htm>
<http://www.knudsenlaw.com/>

Jeanelle R. Lust

Knudsen, Berkheimer, Richardson & Endacott, LLP

3800 VerMaas Pl

Suite 200

Lincoln NE 68502

402 475 7011

402 440 3731 (M)

402 475 8912 (F)

www.knudsenlaw.com

jlust@knudsenlaw.com

Managing Partner

"We help you deal with it"

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Supreme Court Refuses to Hear Nursing Home Civil Rights Case

By: Laura E. Troshynski

www.knudsenlaw.com <http://www.knudsenlaw.com>

Can alleged inadequate nursing home care lead to a civil
rights lawsuit? According to the United States Court of Appeals for the
Third Circuit, the answer is "yes." In July of 2009, in the case of
John J. Kane Regional Centers-Glen Hazel v. Grammer, the Third Circuit
held that the Federal Nursing Home Reform Amendments (FNHRA) guarantee a
nursing home resident's civil rights. Consequently, according to the
Third Circuit, private civil rights lawsuits may be brought against
nursing homes in the event of alleged wrongful death or inadequate
patient care. Recently, the United States Supreme Court declined to
review the case, allowing the Third Circuit decision to stand.

The Third Circuit's ruling was the result of a claim brought
by Sarah Grammer against a Pittsburgh-area nursing home in which Grammer
alleged that her mother, Melvinteen Daniels, was neglected by the John
J. Kane Regional Center. According to Ms. Grammer, the facility
provided inadequate care which eventually resulted in her mother's
death. Instead of filing a typical negligence claim against the nursing
home, Ms. Grammer chose to sue under the Federal Nursing Home Reform
Amendments. According to Ms. Grammer, the FNHRA guarantee various
patient rights, including the right to quality care. Therefore, Ms.
Grammer contended that the alleged inadequate care received by her
mother constituted a civil rights violation for which she could bring a
civil rights lawsuit under the FNHRA. The nursing home, however,
contended that the FNHRA were simply meant to outline requirements for
Medicaid and Medicare certification.

Initially, the District Court ruled in favor of the nursing
home facility. However, the Third Circuit overturned the District
Court's ruling, holding that the FNHRA creates the right to a private
civil rights lawsuit in the event of inadequate care. Various groups,
including the AHCA, the American Association of Homes and Services for
the Aging, and various individual states petitioned the Supreme Court to
review the holding of the Third District. However, despite this
petition, the Supreme Court refused to hear the case. Therefore, it
appears as if nursing homes throughout the country may be exposed to
potential civil rights lawsuits in the event of alleged inadequate
patient care.