Employers and the CCPA

Unless a California employer has been hiding under a rock, chances are that the company is aware of the impending California Consumer Privacy Act (CCPA).

Signed into law in June 2018 as a quickly-enacted compromise to prevent an even stricter initiative from appearing on the ballot, the CCPA is the most far-reaching consumer privacy and data protection measure in the United States.

The new law applies to any for-profit company doing business in the state that (1) collects consumers’ personal information (PI) solely or jointly with others and (2) either (i) exceeds $25 million in annual gross revenues; (ii) annually transacts in the PI of 50,000 or more consumers, households or devices; or (iii) derives half or more of its annual revenues from PI sales.

“Personal information” includes an IP address, Internet activity, geolocation, education information and biometrics, among other data. A “consumer” is defined as “a natural person who is a California resident,” easily encompassing both employees and job applicants.

Covered entities are required to provide consumers with access to the data collected about them as well as the ability to opt out of the sale of their information to third parties and request that their PI be deleted. Businesses must disclose and deliver the information to consumers free of charge within 45 days of receiving a verifiable request.

Violations of the CCPA are actionable by the California Attorney General’s Office and a limited private right of action also exists for data breaches, with civil penalties of up to $7,500 per violation.

The expansive definitions and broad reach of the law have many employers concerned about the application of the CCPA to their business when the statute takes effect on January 1, 2020.

But – for those employers that do fall under the statute’s coverage – a last-minute amendment to the CCPA will provide a one-year reprieve.

In an effort to alleviate the burden on employers, state lawmakers enacted Assembly Bill 25 in September. The measure amended the CCPA to provide a one-year exemption for the personal information “collected from a natural person by a business in the course of the natural person acting as a job applicant to, an employee of, owner of, director of, officer of, medical staff member of, or contractor of that business.”

This tweak grants employers 12 months of breathing room as long as they are collecting the data of employees and job applicants solely for purposes relating to employment. Governor Gavin Newsom signed the bill into law on October 11, 2019.

Despite the reprieve, covered employers would be well-served to continue preparing themselves to comply with the law. The requirements of the CCPA will still apply with regard to PI about non-employees and/or non-exempt uses of employee and applicant data. And the statute will take full effect for employee and applicant data as of January 1, 2021, absent some future change to the law if lawmakers decide to extend the exemption or make it permanent.  

Planning ahead for calamity days

Hurricanes. Snowstorms. Wildfires. Although the events differ based on where an employer is located, such natural disasters pose uniform questions about how to handle potential closures and payment to employees who may not be able to make it into work because of extreme weather or other forms of emergency. 

Sometimes called “calamity days,” such disruptions pose practical problems – Should we close the office? Can people work from home? – as well as legal ones.

Employers need to establish a written policy for calamity days with an aim toward setting expectations with regard to emergency situations. The policy should begin with a definition of the term, such as “the closure of an office by reason of hazardous weather conditions, law enforcement emergencies or disease epidemic.”

The definition should be tweaked depending on the nature of the employer’s business and the geographic location, possibly including the events that will trigger a closure (a specific snowfall amount, a declaration of emergency by government officials or an electrical outage or loss of heat, for example).

Other policy details should include how employees will be contacted and informed in the event of such a day, whether and how employees will be paid for calamity days and instructions on how a worker should proceed if he or she cannot make it into the office.

In terms of legal considerations, several federal statutes come into play.

The Occupational Safety and Health Act’s promise of “safe and healthful working conditions” applies to all national employers with one or more employees. The statute places the responsibility to protect employees from unreasonable danger in the workplace (including natural phenomenon) on the shoulders of employers. Employers should keep this requirement in mind when making decisions about asking employees to come into work in the event of severe weather conditions or other emergencies.

What about paying employees for calamity days? The analysis begins with the Fair Labor Standards Act. The Department of Labor has stated that if employers close for less than a full workweek because of inclement weather or a related emergency, employees need to be paid their normal salary. Closure for a full workweek or more relieves the employer from paying exempt employees.

If an exempt employee elects to take time off under such circumstances, the employer may require the use of vacation time or other paid leave or deduct from the worker’s salary if they don’t have any paid leave remaining. This scenario often presents itself as a snowstorm that results in schools or day care providers closing, requiring parents to remain home with their children even though the employer remains open.

For non-exempt employees, different rules apply. Generally speaking, hourly employees do not need to be paid if they do not come into work, even if the employer closes the business because of an emergency. A partial closing, where an employee reports for work and the employer later decides to halt operations, does require payment for the hours worked.

Adding to the calculus: state laws, which have varying requirements. Some states may require compensation for non-exempt employees in certain circumstances, such as reporting time pay laws or jurisdictions that have “secure” or “predictable” scheduling laws. Many of the state and local laws do feature exceptions for extreme weather scenarios or other emergencies, however.

Employers also have the option to permit employees to work from home (where possible) or pay employees for such days. Although not legally required, these options can cement a better relationship with workers.

Even after a natural disaster ends, employers may face tricky issues.

The Americans with Disabilities Act provides that workers who are physically or emotionally injured as a result of a catastrophe may be entitled to reasonable accommodation by the employer, as long as it would not place undue hardship on the employer’s business operations.

Similarly, the Family and Medical Leave Act permits employees to take leave for a serious health condition caused by a disaster, not just for themselves but to care for a child, spouse or parent (such as the need to help someone who requires refrigerated medicine or medical equipment in a power outage).

Although extreme weather and emergencies will always present concerns, employers can minimize the uncertainty and unknowns of calamity days with some planning and organization.

Unconscious bias in the workplace

A new advertisement from Procter & Gamble features an African-American man going about his day. While walking down a street, a mother shuts her car window as he walks by; he garners suspicious glances while shopping and a couple elects not to sit near him in a restaurant.

The commercial, dubbed “The Look,” ends with the statement: “Let’s talk about the look so we can see beyond it.”

Intended to spur conversation about racial bias, the spot attempts to depict unconscious bias in daily life.

“Unconscious bias” refers to the stereotypes – both positive and negative – that exist in the subconscious and affect behavior. For employers, such stereotypes are particularly hard to handle as people often don’t even realize they exist, let alone that they are being used in the workplace.

Take resumes, for example. In 2012, scientists at Yale conducted a study of identical resumes that differed only in the candidate’s first name. They found that the candidate with the male name was viewed as more experienced and talented, more likely to get hired and to be paid more than the candidate with the female name.

Similarly, a study comparing identical resumes with either a “white”-sounding name or an “African-American-sounding”-name documented unconscious racial bias. The researchers found that the “white” names received 50 percent more callbacks for interviews, across occupations and industries.

Unconscious bias can take other forms, such as “similarity” or “affinity” bias, where people turn toward those with a similar background (individuals who attended the same college, for instance, or who grew up in the same town) or the “halo effect,” where one good thing about a person colors an opinion about all aspects of their personality – i.e., because she went to a good school, she is smart and trustworthy and deserves a promotion.

The opposite impact is known as the “horns effect,” when one negative trait (an employee was late to work one morning) impacts the perception of all characteristics about him (late to work means he is generally lazy and incompetent).

For employers, unconscious bias can limit the pool of candidates being hired and promoted, which in turn can decrease diversity, inclusivity and the growth of the company. Unconscious bias can also negatively infect the interactions between employees at a workplace.  

To combat unconscious bias, employers can begin by raising awareness and starting a conversation about the issue. A few other tweaks can help reduce the opportunity for unconscious bias to arise. Employers can consider a switch to “blind” application forms that eliminate gender, age, religion or ethnicity so that such factors are less likely to come into play for applicants.  

Another option at the hiring stage would be adding more decision makers. By getting more than one person involved in the hiring process, the chance of different opinions and perspectives could open the door to more candidates and move away from the assumptions of just one person. Widening the net when recruiting and making personnel decisions accountable (by requiring people to explain the reasoning behind rejecting a candidate or promoting one individual over another), also help.

For existing staff, employers can continue the conversation about unconscious bias and institute training. Formal mentorship relationships where the employer partners up junior employees with more senior workers – and not ad hoc mentorships, where individuals tend to seek out those with similar backgrounds – can also improve the representation of different perspectives. 

The hot trend in legal agreements: Weinstein clauses

The #MeToo movement has triggered a sea of change with regard to sexual harassment in the workplace, including a new trend in legal agreements.   

Dubbed the “Weinstein clause,” the new addition to the standard roster of representations and warranties in a sales agreement focuses on a company’s knowledge or awareness of accusations of sexual misconduct against its executives and managers.

For example, if Company A decides to purchase Company B, the practice has always been for the soon-to-be acquired company to disclose any information about its financial situation as well as ongoing litigation or threats of lawsuits, and represent that it has complied with certain laws. Issues like allegations of sexual misconduct were not previously part of the consideration.

Now, in the wake of the disclosures of decades of alleged sexual harassment and abuse by former Weinstein Company CEO Harvey Weinstein, a new clause has appeared. Company B is now being asked to represent to Company A that individuals holding leadership positions have not been accused of sexual misconduct and that Company B has not entered into a settlement agreement related to sexual misconduct.

A typical clause may read: “To the Knowledge of the Company, (i) no allegations of sexual harassment have been made against (A) any officer or director of the Acquired Companies or (B) any employee of the Acquired Companies who, directly or indirectly, supervises at least eight (8) other employees of the Acquired Companies, and (ii) the Acquired Companies have not entered into any settlement agreement related to allegations of sexual harassment or sexual misconduct by an employee, contractor, director, officer or other Representative.”

In some cases, Company B has been asked to put some of the purchase price in escrow for a period of time to cover costs shouldered by Company A in the event allegations of sexual misconduct arise after a transaction. Other clauses feature a time period going back several years, often past the actual statute of limitations for claims based on the conduct at issue.

A review of agreements involving public companies by Bloomberg revealed the clauses are being used by companies in a host of industries, from real estate to hospitality to entertainment to healthcare. While the use of the clauses was at first limited to large deals, they are now being found in deals of all sizes.

A variation on the Weinstein clause is also making its way into employment agreements. Companies have reportedly started to change their contracts with executives to be more explicit about sexual harassment and misconduct with regard to termination for cause, in the hopes of reducing (or eliminating) severance pay or the acceleration of stock options when a high-ranking employee is asked to leave.

Previously, cause for termination was generally limited to triggering events such as conviction of a crime.

In addition, companies are asking incoming executives to affirmatively represent that they have not been the subject of a sexual harassment claim, reached a settlement agreement involving allegations of sexual misconduct and/or engaged in harassment or misconduct.

The updated employment agreements serve a two-fold purpose: to create an incentive for executives to avoid such behavior and to protect the company in the event the executive does engage in sexual misconduct.

Allegations of sexual misconduct are now a significant business risk to companies, as evidenced by the drop in $3.5 billion in value to shareholders of Wynn Resorts after sexual harassment allegations surfaced against Steve Wynn; Weinstein’s production company, valued at $200 million, filed for bankruptcy as the claims against him mounted. 

Whether in an employment agreement or sales deal, the so-called Weinstein clauses demonstrate the concrete effect of the #MeToo movement that continues to play out for employers and businesses, with greater scrutiny on culture, diversity, sexual harassment claims and preventative measures.

Harassment vs. workplace bullying

What is the difference between workplace bullying and harassment?

Bullying and harassment often feature similar behaviors, such as offensive remarks or physical aggression. Workplace bullying is generally recognized as repeated, unreasonable and unwelcome behavior directed at a specific employee (or multiple employees) involving a power imbalance that results in psychological or physical harm.

Harassment, on the other hand, triggers legal protections. By definition, harassment involves a protected characteristic – such as gender, race, religion, sex, color, disability, age, genetic information or national origin – and is actionable under either federal law, such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act and the Americans with Disabilities Act, and/or state law, which may include other categories (including sexual orientation and gender identity).

The legal protections under such laws do not cover all potentially harmful behavior. In the 1998 decision of Oncale v. Sundowner, the U.S. Supreme Court noted that Title VII, for example, is not “a general civility code” that prohibits “all verbal or physical harassment in the workplace.” Instead, such statutes are intended to protect the categories of individuals specified in the laws.

One typical illustration of a workplace bully involves the “equal opportunity jerk” who is generally rude and inappropriate to all of his or her subordinates for a variety of reasons that are not based on a protected category. A supervisor who bullies using gender-neutral language or behavior does not violate state or federal law; nor does a manager who singles out a particular employee because of a personality conflict or a disagreement about how the job should be performed.

Harsh criticism, threatening physical gestures and insults based on intelligence (calling employees “stupid” or “incompetent”) are textbook cases of workplace bullying that are not actionable under federal or state law. 

In practical terms, that means that workplace bullying is legal, although efforts have been made to enact anti-bullying laws. The Workplace Bullying Institute drafted model legislation called The Healthy Workplace Bill, and a version of the bill has been introduced in 30 states and two territories. For example, Massachusetts lawmakers recently considered Senate Bill 1072, legislation that would have banned all “abusive conduct” against employees, even if it wasn’t based on a protected characteristic.

To date, no jurisdictions have enacted the measure.

While workplace bullying remains legal, it doesn’t mean that employers should turn a blind eye to such behavior, which has been documented to have a negative impact on the workforce. Employers can provide protections that the law does not, by establishing anti-bullying policies with guidance on how victims of bullying can report incidents and with applicable penalties for employees who violate the policy.

Potential Issues in using Social Media Information in Employment Decisions (Discussion)

Below are some of the common issues and considerations for using social media information in employment decisions.

Illegal discrimination

According to a 2018 national survey conducted on behalf of CareerBuilder by Harris Poll, 70% of employers use social media to screen candidates before hiring. While they may not be searching for negative information, more than half of those surveyed (57%) said they have found something during their screenings that led them to not hire someone. If even a single, disgruntled job applicant sued claiming he/she was not hired because of the illegal consideration of information obtained from a social media site, it could cost the company hundreds of thousands of dollars in legal fees. Convincing a court that the information uncovered from the viewing of social media was not used in the hiring process is often an uphill battle. After all, why was the site accessed if there was no intent to use the information?

Both the federal Civil Rights Act and state statutes prohibit discriminating against an applicant or employee because of a protected characteristic, such as race, religion, ethnic origin, disability and, increasingly, gender identification or sexual preference. For most jobs, this information is intentionally omitted from the employment application process in order to avoid legal problems. But if an employer or its agents want to find out such information, it is often readily available from a candidate’s Facebook page or LinkedIn profile. Of course, users may omit this information from their social media accounts or restrict access, but many do not— especially since they assume it will be accessed only by their friends or close associates.

The case of C. Martin Gaskell v. Univ. of Kentucky (2010 WL 4867630 E.D Ky. 2010) is an example of what can happen when an employer uses information gathered from social media as part of the hiring process. Dr. Gaskell was an astronomer who applied for a job as the director of the observatory at the University of Kentucky. During the job interview, the chairman of the Physics and Astronomy Department stated that he had researched Dr. Gaskell’s religious beliefs (online), and that they might be unacceptable to the dean of the department. The information he obtained showed that Dr. Gaskell was an outspoken critic of evolution and a believer of the intelligent design viewpoint. After someone who believed in evolution was hired for the position, Dr. Gaskell sued the university, claiming that its conduct violated his rights under the Civil Rights Act. Specifically, he alleged that the University discriminated against him based on his religious beliefs. During the discovery process, it was learned that an employee within the department sent an email to the chairman regarding an Internet search

that she conducted on Dr. Gaskell. In the email, she discussed the professor’s anti-evolution religious beliefs and indicated it was not a positive attribute. The court agreed that this information provided Dr. Gaskell with enough evidence to pursue a lawsuit to determine whether his religious beliefs uncovered in the Internet search were, in fact, illegally used to deny him the position sought. The case was ultimately settled for $125,000 before trial.

A discrimination trap that perhaps is frequently overlooked falls under the Americans with Disabilities Act (“ADA”) and may happen when an adverse decision is based on photos  or other postings showing a job candidate drinking or abusing drugs. Surveys show that adverse decisions after viewing such content often involve a reasoning that the individual “used bad judgment” but ADA provisions, as they relate to substance abuse, pose a discrimination risk as “addiction to a drug that has been prescribed, or alcohol abuse problems put the candidate in a protected disability class.”

Another risk exists in the form of disparate impact claims, which can arise if it turns out that an employer has been systematically refusing to hire applicants with a particular protected characteristic. Even if no disparate impact occurred because an employer viewed social networking profiles, disparate impact can result if the company tends to hire people who have social networking profiles rather than those who don’t. It is a generality, but this could occur because younger, more Internet-savvy and more affluent people tend to use social networking more than others.

EEOC consequences

In addition to potential lawsuits from individuals, an area of legal concern is the consequence  of running afoul of the Equal Employment Opportunity Commission (EEOC). The EEOC has become very active in scrutinizing employers’ hiring practices and in filing cases against them when it determines an employer’s hiring practices improperly include the use of social media.

NLRB issues

Whereas the EEOC is tasked with examining companies’ hiring practices, the National Labor Relations Board (NLRB) is the agency that enforces the National Labor Relations Act, which protects union-related activities. Although the NLRB has interpreted the Act as allowing the researching of candidates through social media, it cautions employers that doing so may pose a significant legal risk. It warns that if an unsuccessful job applicant can establish that a prospective employer had knowledge of his/her protected activity through the viewing of social media, the prospective employer may face liability if the applicant alleges he/she was denied employment because of it. An employer may be found legally liable unless it can show that it would not have hired the applicant regardless of its knowledge of the activity. Even if the individual making hiring decisions is not the one who reviewed a candidate’s social media activity, the employer may still be subject to liability since the NLRB has a liberal standard for “imputed knowledge.”

Off-duty conduct statutory restrictions

Several states have enacted legislation to protect employees’ conduct outside of the workplace. Generally, these statutes restrict an employer’s ability to discipline employees for engaging in legal activities while not at work.

In the social media context, in New York for example, the off-duty conduct statute restricts employers’ ability to take adverse action (including hiring, pay, workplace conditions, and termination) against employees engaged in recreational activities. In California, the Dept. of Industrial Relations has interpreted Labor Code § 96(k) which prohibits employers from taking adverse action due to an employee’s lawful conduct outside of work, to apply to decisions not to hire, even though the statute does not explicitly refer to hiring.

FCRA requirements

Under the FCRA § 607(b), consumer reporting agencies (CRAs) are required to exercise “reasonable procedures to assure maximum possible accuracy” of the information. Since the information on social media sites is self-reported and can be changed at any time, it is often difficult to ascertain that the information is accurate, authentic and belongs to the subject. Online identity theft is not uncommon, as are postings under another person’s name for purposes such as “cyber–slamming” (which refers to online defamation, slander, bullying, harassment, etc.) There is also evidence that some applicants try to game the hiring process by creating fake profiles of other potential applicants whom they view as competition for jobs.

Terms of use limitations

While certain social media sites have stricter privacy controls than others, many limit the use of their content. The terms of use agreements typically state that the information is for “personal use only” and not for “commercial” purposes. Although the definition of “commercial” in connection with employment purposes is interpretive, many legal experts say that employment screening fits that scope.

Privacy rights

Most states permit common-law claims for invasion of privacy, and some states, such as California, also provide constitutional privacy rights that may apply to private-sector employers.

Ninth Circuit Defines “Standalone, Clear and Conspicuous” Disclosure for Obtaining Employment-Purpose Background Checks

On January 29, 2019, the U.S. Court of Appeals for the Ninth Circuit in Gilberg v. California Check Cashing Stores, LLC instructed employers about the importance of complying with background check disclosure requirements found in the Fair Credit Reporting Act (FCRA).

Pursuant to the federal statute, employers who want to obtain a consumer report (commonly referred to as a background check report) on a job candidate must provide to the candidate a “clear and conspicuous disclosure” about the report in a document that consists “solely of the disclosure.” 15 U.S.C. § 1681b(b)(2)(A).

But when Desiree Gilberg applied for a job with CheckSmart Financial, she received something different. First Gilberg completed a three-page form containing an employment application, a math screening and an employment history verification. She then signed a separate form entitled, “Disclosure Regarding Background Investigation.”

The one-page form included the required FCRA disclosure as well as mandated state disclosures for California, Maine, Minnesota, New York, Oklahoma, Oregon and Washington.

Gilberg worked for CheckSmart for five months before voluntarily leaving the job. She then filed a putative class action against the company, alleging that it failed to make proper disclosures as set forth in both the FCRA and California’s Investigative Consumer Reporting Agencies Act (ICRAA).

A district court sided with the employer and dismissed the case. The judge agreed with CheckSmart that its disclosure form complied with both statutes. Gilberg appealed to the Ninth Circuit. She argued that the standalone requirement didn’t permit the combination of state and federal disclosures as CheckSmart had tried.

Considering the issue, the Ninth Circuit recalled a 2017 decision in Syed v. M-I, LLC. In that case, which also involved the standalone requirement, the federal appellate panel held that a prospective employer violated the FCRA when it included a liability waiver in the same document as the mandated disclosure. The statute means what it says, the court emphasized: the required disclosure must be in a document that “consist[s] ‘solely’ of the disclosure.”

In an effort to distinguish its disclosure from that in the Syed case, CheckSmart told the court that the additional information in its form actually furthered the FCRA’s purpose.

“We disagree,” the court wrote. “Syed’s holding and statutory analysis were not limited to liability waivers; Syed considered the standalone requirement with regard to any surplusage. Syed grounded its analysis of the liability waiver in its statutory analysis of the word ‘solely,’ noting that FCRA should not be read to have implied exceptions, especially when the exception – in that case, a liability waiver – was contrary to FCRA’s purpose. Syed also cautioned ‘against finding additional, implied exceptions’ simply because Congress had created one exception. Consistent with Syed, we decline CheckSmart’s invitation to create an implied exception here.”

Plain meaning trumps purpose, the Ninth Circuit said, rejecting the employer’s contention that its disclosure form was consistent with the intent of the FCRA. Since the surplus language included disclosures required by various state laws that were inapplicable to Gilberg, the court was unable to understand how the CheckSmart form comported with the purpose of the federal statute.

“Because the presence of this extraneous information is as likely to confuse as it is to inform, it does not further FCRA’s purpose,” the court declared.

“Syed holds that the standalone requirement forecloses implicit exceptions,” the panel wrote. “The statute’s one express exception does not apply here, and CheckSmart’s disclosure contains extraneous and irrelevant information beyond what FCRA itself requires. The disclosure, therefore, violates FCRA’s standalone document requirement. Even if congressional purpose were relevant, much of the surplusage in CheckSmart’s disclosure form does not effectuate the purposes of the FCRA.”

In addition to ruling that the district court erred in concluding that the employer’s disclosure form satisfied the FCRA’s standalone document requirement, the Ninth Circuit also held that CheckSmart’s disclosure form was not “clear and conspicuous” under either FCRA or ICRAA.

The court grudgingly found the form to be “conspicuous” (despite characterizing the font as “inadvisably” small and cramped) but held it was not “clear.” The disclosure contained language a reasonable person would not understand, the court said, and its content would confuse a reader with the combination of federal and state disclosures.

As “CheckSmart’s disclosure form was not both clear and conspicuous, the district erred in granting CheckSmart’s motion for summary judgment with regard to the FCRA and ICRAA ‘clear and conspicuous’ requirements,” the panel wrote. The Ninth Circuit reversed dismissal of Gilberg’s complaint and remanded the case to the California district court. (As of this writing, there is a petition for rehearing and rehearing en banc pending before the 9th Circuit.)

For employers, the Ninth Circuit opinion could not be more clear: ensure that the FCRA disclosure form provided to job candidates contains no extraneous or surplus language. The decision also provides an important reminder about keeping disclosures forms clear and conspicuous in order to comply with both federal and state laws.

Pursuant to the federal statute, employers who want to obtain a consumer report (commonly referred to as a background check report) on a job candidate must provide to the candidate a “clear and conspicuous disclosure” about the report in a document that consists “solely of the disclosure.” 15 U.S.C. § 1681b(b)(2)(A).

But when Desiree Gilberg applied for a job with CheckSmart Financial, she received something different. First Gilberg completed a three-page form containing an employment application, a math screening and an employment history verification. She then signed a separate form entitled, “Disclosure Regarding Background Investigation.”

The one-page form included the required FCRA disclosure as well as mandated state disclosures for California, Maine, Minnesota, New York, Oklahoma, Oregon and Washington.

Gilberg worked for CheckSmart for five months before voluntarily leaving the job. She then filed a putative class action against the company, alleging that it failed to make proper disclosures as set forth in both the FCRA and California’s Investigative Consumer Reporting Agencies Act (ICRAA).

A district court sided with the employer and dismissed the case. The judge agreed with CheckSmart that its disclosure form complied with both statutes. Gilberg appealed to the Ninth Circuit. She argued that the standalone requirement didn’t permit the combination of state and federal disclosures as CheckSmart had tried.

Considering the issue, the Ninth Circuit recalled a 2017 decision in Syed v. M-I, LLC. In that case, which also involved the standalone requirement, the federal appellate panel held that a prospective employer violated the FCRA when it included a liability waiver in the same document as the mandated disclosure. The statute means what it says, the court emphasized: the required disclosure must be in a document that “consist[s] ‘solely’ of the disclosure.”

In an effort to distinguish its disclosure from that in the Syed case, CheckSmart told the court that the additional information in its form actually furthered the FCRA’s purpose.

“We disagree,” the court wrote. “Syed’s holding and statutory analysis were not limited to liability waivers; Syed considered the standalone requirement with regard to any surplusage. Syed grounded its analysis of the liability waiver in its statutory analysis of the word ‘solely,’ noting that FCRA should not be read to have implied exceptions, especially when the exception – in that case, a liability waiver – was contrary to FCRA’s purpose. Syed also cautioned ‘against finding additional, implied exceptions’ simply because Congress had created one exception. Consistent with Syed, we decline CheckSmart’s invitation to create an implied exception here.”

Plain meaning trumps purpose, the Ninth Circuit said, rejecting the employer’s contention that its disclosure form was consistent with the intent of the FCRA. Since the surplus language included disclosures required by various state laws that were inapplicable to Gilberg, the court was unable to understand how the CheckSmart form comported with the purpose of the federal statute.

“Because the presence of this extraneous information is as likely to confuse as it is to inform, it does not further FCRA’s purpose,” the court declared.

“Syed holds that the standalone requirement forecloses implicit exceptions,” the panel wrote. “The statute’s one express exception does not apply here, and CheckSmart’s disclosure contains extraneous and irrelevant information beyond what FCRA itself requires. The disclosure therefore violates FCRA’s standalone document requirement. Even if congressional purpose were relevant, much of the surplusage in CheckSmart’s disclosure form does not effectuate the purposes of the FCRA.”

In addition to ruling that the district court erred in concluding that the employer’s disclosure form satisfied the FCRA’s standalone document requirement, the Ninth Circuit also held that CheckSmart’s disclosure form was not “clear and conspicuous” under either FCRA or ICRAA.

The court grudgingly found the form to be “conspicuous” (despite characterizing the font as “inadvisably” small and cramped) but held it was not “clear.” The disclosure contained language a reasonable person would not understand, the court said, and its content would confuse a reader with the combination of federal and state disclosures.

As “CheckSmart’s disclosure form was not both clear and conspicuous, the district erred in granting CheckSmart’s motion for summary judgment with regard to the FCRA and ICRAA ‘clear and conspicuous’ requirements,” the panel wrote. The Ninth Circuit reversed dismissal of Gilberg’s complaint and remanded the case to the California district court. (As of this writing, there is a petition for rehearing and rehearing en banc pending before the 9th Circuit.)

For employers, the Ninth Circuit opinion could not be more clear: ensure that the FCRA disclosure form provided to job candidates contains no extraneous or surplus language. The decision also provides an important reminder about keeping disclosures forms clear and conspicuous in order to comply with both federal and state laws.

74 Stay Interview Questions

The stay interview differs from an exit interview because, in a stay interview, you ask current employees why they continue to work for your organization. It allows you, the employer to address issues and/or concerns while the employee is still with your organization. At the exit interview, it’s because he or she is leaving to the organization to pursue something else.

  1. What do you like about your job?
  2. Can you tell me about a good day of work you had recently?
  3. Do you feel you’re being used to your full potential in this job?
  4. If you won $25 million in the lottery tomorrow, what would you do?
  5. Is there something new in particular you want to learn this year?
  6. Do you feel you are appropriately recognized for your contributions?
  7. Do you have the right resources to perform successfully?
  8. Do you feel like you’re in the know when it comes to company information or departmental changes?
  9. Can you describe a recent frustrating experience or day on the job?
  10. Do you feel as though you are treated with trust and respect in your position?
  11. On a scale of 1 – 10, how satisfied are you with your job? What would it take to make you the next higher number?
  12. What are the favorite parts of your job?
  13. What is it about your job that brings you energy?
  14. Which projects this year have you been most proud of? Why?
  15. What elements of your job do you find draining (or less interesting)?
  16. If you could change one part of your current role, what would it be?
  17. I’ve noticed that you tend to get stuck or frustrated when ____ happens. Have you noticed the same thing? What’s causing the frustration?
  18. If you could do anything for a living, what would it be? How can we bring a few of those “dream job” elements into your current role?
  19. What do you envision as the next step for you career-wise?
  20. How can we reconfigure your current role to help you grow your skills?
  21. How can I help you on your professional development path? What should I start/stop/continue doing?
  22. What feedback do you have for me in the way that I interact with you?
  23. Can you think of anything we could do to simplify things around here?
  24. The last time you went home and said, “I had a great day, I love my job,” what had happened that day?
  25. The last time you went home and said, “That’s it, I can’t take it anymore,” what had happened that day?
  26. If you switched careers, what would you miss the most?
  27. What do you like most about your team?
  28. What demotivates you most about working on your team?
  29. What is really different at this company that makes you proud to be an employee?
  30. What demotivates you most about working for the company?
  31. What did you love in your last position or company that you’re not doing now?
  32. If you could afford to retire tomorrow, what would you miss most about your job?
  33. Can you think of any kind of advanced training or course you would like to take that would make you more productive?
  34. Are you challenged in your day-to-day work?
  35. What is most energizing about your work?
  36. How could we more fully utilize your talents and capabilities?
  37. What, if anything, is holding you back from being more effective?
  38. What can we do to make your job more satisfying?
  39. What can we do to support your career goals?
  40. What keeps you here?
  41. What might cause you to consider leaving the organization?
  42. What would be the one thing that, if it changed in your current role, would make you consider moving on?
  43. If you had a magic wand, what would be the one thing you would change about this department or company?
  44. What was the best job you ever had and why?
  45. In what areas would you most like to learn and grow?
  46. What are your career goals? (short-term and long-term)
  47. Out of what we have discussed today, what are the top 2 to 3 priorities of focus for you?
  48. What knowledge and support will you need to help achieve your development goals?
  49. What can I do as your manager to help you meet these development goals?
  50. What would you say is your biggest complaint or criticism of me?
  51. What are some things you are working on that you are not being recognized for?
  52. In what ways do you not feel open to communicate with me and what do I do to cause this?
  53. Tell me specifically what factors cause you to enjoy your current job and work situation.
  54. If you have ever been asked by a close friend or have been contacted by an external recruiter, can you tell me what reasons you gave them for wanting to stay at our firm?
  55. Do you feel that you are currently doing “the best work of your life?”
  56. Can you list for me the factors that could contribute to you doing the best work of your life?
  57. Do you feel that your work makes a difference in the company and that externally it has a noticeable impact on customers and the world?
  58. Do you also feel that your coworkers think that you make a difference?
  59. Do you feel “fully utilized” in your current role?
  60. Do your colleagues and teammates listen to you and do they value your ideas, inputs, and decisions? How can that area be improved?
  61. If you “managed yourself,” what would you do differently (in relation to managing “you”), that I, as your current manager, don’t currently do?
  62. Can you make a list of the elements or motivation factors in your current role that you like best and that you would like “more of? What factors would you miss most if you transferred you to a completely different job?
  63. What things do you really miss from your last job?
  64. Can you also make a list of the less-desirable elements or frustrations in your current role that you would like to do “less of?”
  65. Are there any frustration factors that keep you up at night, that enter your mind while driving to work, or that cause you to dread having to come to work at all?
  66. If you were given the opportunity to redesign your current role, can you make a list of the key factors that you would include in your “dream job?”
  67. Can you help me understand your career progression expectations and let us know where you would like to be in the organization two years from now?
  68. Can you highlight any recent recognition and acknowledgment that you have received that increased your commitment and loyalty? Are there actions that we can take to further recognize you?
  69. Can you highlight for me your positive experiences in the area of learning, development, and growth?
  70. And are there ways where we could increase that growth?
  71. Do you want to move into a leadership role? If so, what are your expectations, timetable and concerns?
  72. Think back to a time in the last 12 months when you have been at least slightly frustrated or anxious about your current role. Can you list for me the frustration factor or factors that most contributed to that anxiety?
  73. If you’ve had conversations with other employees who have considered leaving or who have actually left our firm, did any of the reasons that they provided for leaving cause you to at least partially nod in agreement?
  74. What are the prime factors that caused you to leave your last two jobs? Are there factors from your previous jobs that you hope you will never have to experience again at our firm?

Reward and Recognition Programs Boost Employee Productivity

Many employers are strong believers in taking care of their employees and recognizing their contributions in order to achieve the company’s core values. Let’s be honest: We love a great reason to celebrate each other as professionals and as human beings… quality work, strong sales from referrals, work anniversaries, birthdays, marriages, interns, veterans, positive client feedback, babies, charity events.

Much of this celebrating involves food and/or team building activities. I can’t tell you enough, it’s an investment that pays off in spades: improved employee morale results in better customer service, lower turnover, higher productivity.

Do you have to spend a lot of money to run an effective recognition program? No, but you do need a little creativity and a sense of what motivates your employees. Before you spend the next week scratching your head over how your employees would like to be recognized, why not ASK THEM DIRECTLY? Believe me, I’m very appreciative when my husband asks me what I want for my birthday, because if it was up to him, I’d end up with a leaf blower.

As you get a good feel for putting together a rewards/recognition program your employees would appreciate, you’ll find that many of these things can overlap to create a steady stream of positive vibes throughout the year. And don’t think that implementing any of these will change things overnight! Remember what I said earlier, this is an investment and it will take time before you see any noticeable changes.

Here are some suggestions for you to consider, some of which have been implemented at Scherzer International with great success:

Company apparel/gifts – Love that swag! I send my husband to his work daily with an insulated lunch bag sporting my employer’s logo and not only is it useful, it’s been a conversation starter at his office. You never know where the next client referral will come from!

When designing company swag, pleeeeeaaaaase make sure the design has cool vibes emanating from it. We’re talking religious-painting-halo-vibes-cool. It should make people WANT to be seen with/wearing it.

The best ones I ever saw were the t-shirts and baseball caps made exclusively for the employees at the Los Angeles County Coroner’s Office. They were participating in a 5K charity run and it was amazing to see people inquire about where they could get a shirt or hat. The design was simple, but very straightforward. You guessed it, they were black with a white chalk body outline. The designs for the general public are less morbid but still quite popular. I know, most companies wouldn’t want to be associated with death, but hey, kudos to the Coroner’s Office folks for making the best of a service everyone’s dying to use at one point. (Oooooh, sorry about that, couldn’t resist.)

Employee discounts – If you sell goods that your employees can use, offer great discounts to them at cost or a little bit above. Have extra inventory that you need to move out? Offer them to your employees before you donate. It gives employees a chance to use the products and show them off to family and friends which increases the company’s visibility.

Charity work – This works best when some paid time is set aside to do charity work. Team building for the betterment of humanity–it doesn’t get any better than this. Additionally, this is a wonderful way to toot your company’s horn when you have everyone wearing company swag at a charity event. See what I mean about overlapping your efforts?

Charitable donation – A thoughtful donation to a charity of an employee’s choosing in honor of their loved one’s passing can make a huge impact and lets the employee know you care.

Charity gala guests – If you or your company is affiliated with any charities, it’s a great idea to invite employees to any special galas as a way to appreciate their contributions and to help them appreciate the impact of community involvement.

Monthly/annual lunches – This is when we have team building exercises (fancy word for games) and bond over food. In November we have a potluck style Thanksgiving-themed luncheon. It saves the company some money and encourages hands on participation. That is what I call winning! Just make sure you have a paper/online signup sheet that asks for what is needed like appetizers, main dish, sides and desserts. Without one, you might end up with eight different cakes. Well, that might not be a bad thing, eh?

Casual day/themed weeks – You can have hat day, sports day, work out day, beach day, Halloween dress up day… anything fun that could make people smile. Just keep in mind that some themes might be tacky or downright offensive. And even if your employees see nothing wrong with a theme, the general public might when they see social media content posted by your company and/or your employees on their personal accounts.

Steer far away from polarizing themes like politics. Especially politics. Halloween can be a harrowing time with unfettered creativity. Remember that uproar this past Halloween caused by a dozen or so teachers who thought it was a good idea to dress up as Mexicans and a border wall? Yeahhhhh, don’t allow stuff like that. Let your employees ask themselves: Will this costume potentially create an avalanche of bad reviews on Yelp or Glassdoor?

Coffee shop/local park meetings – Anywhere that can provide a nice change of pace and environment. If it’s a beautiful day, meet up at a park or coffee shop and soak up the fresh air or lovely aroma of coffee. A relaxed setting helps get the creative juices flowing! You know that boxy font used to imprint every credit card? It’s called Farrington B and it was first drawn on a napkin at a hotel, not in a conference room or cubicle.

Holiday decorating/employee competitions – Look on Pinterest and you will see some VERY amazing office holiday displays. This can be a perfect team building experience that can span over the course of several weeks as anticipation builds. Encourage your employees to be resourceful/frugal in the materials utilized if at all possible. Emptied shipment boxes were very scarce in October around here. Don’t be too draconian about the use of some office supplies for that. It’s supposed to be fun, and telling someone not to use a paper clip to hang up string lights sounds petty, you know what I mean?

Birthday cards – Have cards signed every month. Then designate a day to pass those cards out and order some cake!

Wellness perks – Flu shots, yoga classes, these go a long way to keep employees healthy and balanced which means better productivity. Some companies even subsidize gym memberships. If your company isn’t in a position to do that, consider paying for Costco memberships, which brings me to my next point…

Costco warehouse memberships – I sometimes think these things are more highly valued than flexible spending accounts simply because there are more opportunities to utilize the savings in an immediate way. You can even buy gym memberships at a highly discounted rate.

Scholarship – A simple gesture of making a tuition contribution is a fantastic way of recognizing an employee who works extra hard, especially if they are going to graduate with new skill sets that will benefit your company.

Dog days – There are fewer things around here (besides babies) that will get everyone to smile when we have a doggy visitor. One of our employees sometimes brought his little pug who napped quietly on his desk while another employee brought his high energy pup for short visits to say hi to EVERYONE. And not one person could resist smiling, either. Just keep in mind some employees might be allergic to dogs.

Pet bereavement day – You’ve heard all those stories about people who wouldn’t leave their pets behind during a natural disaster or decline to stay in a homeless shelter because their pets weren’t allowed. It makes sense to acknowledge the loss of a family member. Ever have a pet pass away? You’re a mess! How productive can you be at work anyway when you lose your fur baby?

Time off – Reward an exceptional employee with some time off which is to be used within a week. Fifteen minutes here and there won’t appreciably impact productivity. But to leave a little early to get a headstart on traffic means a little more precious time spent with family.

“Caught you Caring” cards – Instant recognition for “catching” someone in the act of… being great! Just have some cards handy that you can fill out what you observed on the spot for exemplary work, professionalism, kindness.

Social media shout out – Did your employee help facilitate a big project? Receive compliments from a client? Pulled someone from a burning car? Adopted five cats? It can be anything as long as the employee doesn’t mind being identified online. It’s just a fun way to feature individuals to give more personality to your company.

Share client praise – These are like little nuggets of gold, aren’t they. It feels great to provide a quality product or service that impresses a client enough to give great feedback. Why not share the love with everyone?

VIP parking – It can be issued for the week, month, however long you decide. This is a very easy and convenient gesture to thank a deserving employee.

Peer recognition – Give employees a forum to recognize each other. We use TINYpulse.com as a means to not only send each other “cheers” but we also use it to administer surveys and send comments/suggestions anonymously. Though not 100%, we have very good participation rates throughout the company, especially when we have concerns that motivate us to speak up… sort of like during this past midterm election season. Whoops, no politics. Sorry.

Traveling trophy – It circulates around the office every month for a contest won by a team or individual. One of our employee’s young son won a contest once by a landslide during a luncheon. I suspect his cute game face was too strong for us to resist.

I do want to leave you with these caveats when acknowledging employees:

Try to avoid putting overwork as an activity to be admired. There are times when work is overwhelming and everyone needs to put in the extra overtime, but try to reward the team effort and the dedication to get that big project done instead of emphasizing the exhausting and morale-sucking workload. The end results are the same as far as productivity, but it’s the emphasis on the right aspects of the work. We want to admire each other’s work ethic, not necessarily the task accomplished.

Reward employees for going above and beyond, not for fulfilling a basic job expectation. Some rewards programs can actually demotivate an employee, believe it or not. It depends on how you implement the rewards program. A research paper published in 2013 by Harvard Business School assistant professor Ian Larkin along with professor Lamar Pierce and doctoral student Timothy Gubler from the Olin School of Business at Washington University in St. Louis suggests that sometimes rewarding employees can backfire.

The study focused on an awards program where the idea was to improve attendance and punctuality. Employees with perfect monthly attendance were entered into a drawing for a gift card to a local restaurant or store and then a higher value gift card drawing every six months for all employees with a perfect attendance record during that time period. Attendance and tardiness dropped, but only when employees were eligible for the drawing. Upon even closer examination, the stellar employees with good attendance and high productivity suffered a six to eight percent decrease in productivity which was an indicator they might have been wondering why a reward program was being implemented for a behavior they were already exhibiting. See the difference?

So those were just a few ideas on rewards and recognitions. As you can see, a lot of them don’t require any money or very little of it. It just takes time, effort, and consistency but it’s well worth it!

There is No Replacing the In-Person Interview

Ever consider comparing grandma’s cooking to fast food? Of course not! Yet the fast food industry is going strong because its offerings are…well, fast. Tasty? Maybe, but definitely convenient and fast(er). So the question came up here recently about comparing remote vs. in-person interviews. The overall conclusion is like how we feel about grandma’s cooking: There is a place for both but the remote interviews don’t hold a candle to those conducted in-person. However, there are appealing aspects to different remote interview methods which include various levels of speed and convenience much like drive-throughs and cooking subscriptions that can save you time.

Back when the only option to interview job candidates remotely was by telephone, the pros and cons were more distinct. The up-front advantages of a phone interview are the cost/time saving potential and convenience. That and perhaps relieving a candidate (or you) from the embarrassment of a bad hair day. It’s perceived as more of a pre-screening tool to sort out the more desirable candidates to invite later for in-person interviews. Who hasn’t gone a block to the nearest drive-through wearing bunny slippers because it was so convenient, fast and cheap? Enter the on demand robo-interview and video chat.

The robo-interview:

Less commonly utilized, robo-interview formats usually consist of recording answers to a list or pre-recorded set of questions. Most of us aren’t comfortable with public speaking, and we’re certainly not YouTube stars accustomed to recording videos for the world to see so it’s important to keep that in mind when trying to attract top talent if you consider this as an employment screening tool. But hold on:

  • Do you have to sift through dozens (hundreds?) of resumes/applications?
  • Is your company/industry so popular that you can’t keep up with the volume of open positions to fill?
  • Do you like ordering pizza to be delivered/ready at a specified time using apps instead of calling?

If you say yes to at least two of these, there could be benefits to using this method. If used as a pre-screening tool like phone interviews, it’s a relatively simple process for you as a hiring manager to compose the questions, post the job online and provide a link to those truly interested applicants willing to take the time to answer the questions. You can then review the responses, share the footage with other hiring managers and follow up with inviting top applicants for an in-person interview… all on your own time.

Consider the following aspects of robo-interviews as they pertain to your particular company:

Of the applicants who do submit their recorded answers, introverts might be perfectly happy to avoid interacting with other humans, but do you imagine most of them to be perfectly comfortable with only having a couple of tries answering a question within a minute? Will the responses convey their personalities enough to determine if they will mesh well with the job and other people? Or do you want to turn up the heat like Gordon Ramsay and see how well someone responds to stress?

This interview method removes personal interaction which could be good if you need to ask the same questions in exactly the same way for a more level playing field. If you’re running an engineering firm and keep the questions to technical ones, this might be a good way to go to gauge knowledge, creativity and observe problem-solving thought processes before considering the applicant for the in-person interview. It’s like handing off the same secret ingredient in an Iron Chef episode to see what everyone does with it.

The video chat:

If you would rather initially connect with a candidate on a more personal level, you might do well with the video chat method. The concept of live video chatting back in the 60’s was a fanciful take on the future in shows like The Jetsons and Star Trek. Now that this technology is here and growing dramatically in popularity, it’s a step away from the actual traditional in-person interview while still offering some degree of personal interaction. They tend to run shorter than in-person interviews but still gives everyone a chance to get to know each other better. Think of it as similar to those increasingly popular food subscriptions that are delivered to your door. Everything has been pre-measured and prepped so all you need to do is cook it. There is still some room to tailor it according to how things progress.

The huge added benefit here is the addition of visual input for both sides. You’ll catch that smile supplementing an enthusiastic voice, the confident posture when answering a technical question, perhaps even a rude eyeroll or glassy-eyed deer in headlights expression. You can expect a candidate to look appropriate yet still more likely to be relaxed from their kitchen table or living room. That is, until their cat jumps onto their lap or the gardener shows up with a leaf blower. Even that is an observable moment as you see how a candidate reacts and deals with an unexpected stressor.

In comparison to an in-person interview, however, it’s still interacting using two-dimensional flat surfaces so it will also tend to flatten the “humanness” of the participants. A study by the McMaster University Degroote School of Business conducted in 2013 found that candidates and interviewers seemed less likeable and less competent with the use of video interviews. Yes, nothing compares to grandma’s cooking and an in-person interview!

How to maximize your use of video chats:

  • Make sure connections and equipment is in top working order.
    Too many interruptions will feel like trying to cook while a two-year-old is running around in the kitchen.
  • Position the webcam as close to eye level as possible right above the screen and at a distance that captures your facial expressions. Remember, both parties tend to look at a screen and not directly into the webcams so it is important to minimize the lack of direct eye contact.
  • Be sure to emphasize your facial expressions a little more because you don’t have the full use of body language. Candidates who are more comfortable with their interviewers tend to give better answers and develop a favorable impression of potential employers which causes them to be more likely to accept a job offer.
  • Have someone take notes so you don’t have to keep looking away from the webcam.
  • You can also record the actual interview so you can go back and review the candidate’s responses and share the interview with others. Recorded interviews can help in deciding which candidates gave better answers, but you also run the danger of nit-picking. Remember that saying about too many cooks in the kitchen?
  • You can show candidates a pre-recorded video of current employees in action off and on the job to give them a feel of your company’s “menu” and all of the “specials” that would make your company stand out as a first choice.

Hopefully you’ll be confident about inviting candidates over by the time you’ve picked out the finalists… and that grandma would approve!