POSTED BY MELISSA ZINKIL ON MARCH 28, 2013

The background check has been an important tool in the employer's toolbox for years. In these challenging economic (and litigious) times, its importance cannot be underscored enough.  Whether an employee exaggerates his or her qualifications or fails to disclose a violent, criminal past, failure to conduct a background check can expose an employer to loss, liability and/or lawsuits.  Many resumes contain factual discrepancies regarding education and work experience or exaggerated information about skills and attributes.  Failure to identify such errors and omissions before the employment relationship commences can have unfortunate and costly consequences for employers. 

While the practice of conducting background checks on job applicants is certainly not new, it has undergone tremendous transformation in recent years.  The amount of information available about applicants continues to increase and has become less expensive to procure.  In consideration of the wealth of information now available at their fingertips, employers conducting background checks (either in-house or through consumer reporting agencies) must be ever more vigilant not to run afoul of federal and state equal employment opportunity laws, as well as state and federal privacy laws.  This is particularly so, given the EEOC's recent identification of "Eliminating Systemic Barriers in Recruitment and Hiring," including the targeting of "exclusionary policies and practices, . . . restrictive application processes, and the use of screening tools," as the first of five (5) nationwide priorities which will guide its enforcement efforts for Fiscal Years 2013 to 2016.

At the 18th Annual Akerman Labor & Employment Law Seminar, I will be discussing the different types of background checks available to employers in the digital age and the laws regulating same; the applicability of federal and state equal employment opportunity laws to such activities, including, but not limited to, a review of the EEOC Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964; and the overall risks and rewards of knowing whom you are about to hire.  I look forward to seeing you on April 18th!

POSTED BY RICHARD D. TUSCHMAN ON DECEMBER 11, 2012

But certain actions that an employer may view as disloyal do not breach an employee's duty. "Blowing the whistle" on an employer's illegal activity is protected conduct and cannot be the basis for a breach of duty of loyalty claim.  Similarly, an employee’s mere preparation to open a competing business, such as opening a bank account or obtaining office space or telephone service, does not breach the employee's duty of loyalty.

What about referring work to a competitor and receiving a commission from that competitor?  While that might strike most employers as clearly disloyal, a recent case illustrates the defenses an employee may raise in response to such a claim. 

In Hennegan Co. v. Arriola, 855 F. Supp. 2d 1354 (S.D. Fla. 2012), a printing company, Hennegan, sued its former salesman and head of its Miami office, Joseph Arriola, for breach of the duty of loyalty and other claims, and refused to pay certain commissions to him that he had earned at Hennegan.  The suit revealed that while working for Hennegan, Arriola referred over $1,000,000 of business from two customers to a competitor called Solo, and earned over $300,000 in commissions from such referrals.  

In defense of his actions, Arriola pointed to the fact that one of the customers insisted that its printing work be done in South Florida, where Hennegan did not have a printing facility.  The CEO of the other customer had ordered its director of marketing to stop doing business with Hennegan.  Arriola therefore referred these customers to Solo, which rewarded Arriola with a commission.  

The court, in deciding that Arriola's actions did not breach his duty of loyalty, noted that under Florida law, although Arriola could not have usurped one of Hennegan's business opportunities for himself, he was free (absent a non-compete agreement) to engage in competitive activity if he acted in good faith and refrained from interference with his employer's business.  The Court found that Arriola "acted in good faith when he referred out the business of customers after Hennegan was unable or unwilling to satisfy specific requirements of those customers."  The court also determined that Arriola was entitled to his unpaid commissions from Hennegan.

Florida employers should, of course, be vigilant about their employees' business-related activities to ensure they are not breaching their duty of loyalty.  But as the Hennegan case illustrates, what appears disloyal to an employer may be seen very differently by a court. 

POSTED BY JENNIFER T. WILLIAMS ON NOVEMBER 26, 2012

Mall decorations and peppermint mochas can only mean one thing - the holidays are here again and office festivity plans are well underway. Holiday parties can bring out the very best and the very worst in employees. Unfortunately, the days are gone when what happens at the holiday party stays at the holiday party.  With increased use of social media sites such as Facebook, Twitter, YouTube, and Instagram, what seemed to be a funny and harmless office party prank may now be captured for posterity.  The following practical tips may help avoid the party going viral on the internet:

• Remind employees that all company policies and procedures, including social media policies and anti-discrimination/anti-harassment policies, continue to apply equally at holiday parties and off–site events. Employees tend to "let loose" at holiday parties, so consider sending a company-wide memo reminding employees of company expectations regarding proper decorum, appropriate attire, and professional conduct.  Designate multiple supervisors to monitor and address inappropriate behavior.

• Consider hiring a professional photographer or renting a photo booth for entertainment.  Employees may be less likely to take their own pictures/videos when other options are provided.  It is an added bonus that these pictures cannot easily be posted on the Internet.

• Ensure that the holiday party theme is not specific to any one religion and does not exclude any particular individuals or groups of employees.  For example, hosting the company's annual Christmas or Hanukkah party could make employees who do not celebrate those religious occasions feel uncomfortable, which could lead to disgruntled posts.  The risk is only increased where employee attendance is mandatory.

• Take proactive steps to limit improper or questionable conduct by selecting a venue that is tasteful and not otherwise offensive to any employee.  For example, a holiday party held at a nearby restaurant or in the office conference room is probably a better idea than a holiday party held at a nightclub.

• Consider limiting alcohol consumption to one or two drinks per employee by distributing drink tickets and instructing venue staff not to provide drinks to anyone without tickets. Of course, having a "no questions asked, free ride home" car service available to anyone who nevertheless gets too intoxicated to drive is a good idea.

Happy Holidays!

POSTED BY RICHARD D. TUSCHMANON MARCH 30, 2012

An IRS ”Notice of Levy on Wages, Salary and Other Income” arrives in your mailbox concerning one of your employees? What do you do?  

First, don’t panic.  This is primarily a problem for the employee, whom the IRS has identified as being delinquent in certain tax payments.  

But don’t ignore the notice, either.  As the taxpayer’s employer, you have a legal obligation to levy the employee’s wages in accordance with the instructions set forth in the notice.  

Ah, the instructions.  They are a bit complicated. So read them carefully.  Then read them again to be certain you know what you’re doing. Basically, though, you need to inform the employee immediately of the notice, give the employee three working days after you receive the notice to claim exemptions, and then calculate the amounts that are exempt from levy using IRS Publication 1494.  Then begin levying the employee’s wages until the IRS sends you a release of levy.  Note that the usual restrictions on the amount of wages that can be garnished do not apply to levies from the IRS or state taxing agencies.  

Levying an employee’s wages is a major headache, right?  You bet.  Can you fire the employee for putting you through this?  No, at least not for a one-time levy.  A federal statute, 15 USC 1674 (part of the Consumer Credit Protection Act) provides:  “No employer may discharge any employee by reason of the fact that his earnings have been subjected to garnishment for any one indebtedness.”  So take an Advil, grab your calculator, and let the levying begin.