Procedures For Credit Checks During A Job Hiring Process

I know it sounds strange, but bad credit can actually hurt your chances of getting a job if a potential employer runs your credit report.  Job candidates with poor credit histories may be weeded out and rejected for the position.  It’s legal under Iowa law to reject an applicant based on that person’s credit history.

Any such credit check must comply with the Fair Credit Reporting Act though.  Labor and employment law issues under the Fair Credit Reporting Act can arise when employers conduct credit checks as part of the hiring process.  That likely won’t make your job rejection itself unlawful, but it may put a little extra money in your pocket if the potential employer doesn’t follow federally-required procedures for employment-related credit checks.

The Fair Credit Reporting Act’s requirements arise when an employer uses a third-party credit reporting agency (CRA) to conduct background checks, also called consumer reports.  The most common contents of a consumer report include prior employment verifications, credit checks, conviction record checks, and driving record checks.   Be aware though that it is becoming increasingly common for employers to simply “Google” applicants for positions, especially in small businesses. Background checks or consumer reports conducted in an informal manner such as this, without using the services of a third-party background check company, are not subject to the Fair Credit Reporting Act.

Before an employer can conduct a background check through a third-party CRA, it must provide a “clear and conspicuous” notice to the applicant.  This notice must be provided in writing, and the employer must receive signed authorization from the applicant. This means that the notice and authorization should be provided on its own, separate piece of paper.  The Fair Credit Reporting Act also requires employers to verify they provided notice and authorization to the applicant and and will continue to comply with the law.  Employers must also verify they will not discriminate against the applicant based on the report’s contents or otherwise misuse the information.

If, upon reviewing the consumer report, the employer decides to take an “adverse action,” in this scenario refusing to hire the applicant, the employer must first provide the applicant with notice of its intent to take an adverse action, a copy of the consumer report it reviewed in reaching that decision, and a copy of a document titled “Summary of Your Rights Under the Fair Credit Reporting Act.”  This gives the applicant an opportunity to review the report and object to any inaccuracies in the report, in an attempt to prevent the adverse action from happening.

After the adverse action is taken, here the rejection of the applicant, the employer must provide the applicant with:

  • A notice of the adverse action; the contact information (name, address, telephone number and web address) of the CRA that provided the report
  • A statement that the CRA did not make the decision to take the adverse action and cannot explain to the applicant why the adverse action was taken
  • A notice that the applicant has the right to dispute the information contained in the report
  • A notice that the applicant has the right to obtain a free copy of the report from the CRA for 60 days

Once finished with using the consumer report, the employer must securely dispose of it.

Please feel free to contact me if you have a labor or employment law question regarding the use of your credit history during an employment hiring process.

Protection From Retaliation For Internal Whistleblowers

The term “whistleblowing” is frequently thought to refer to an employee’s reports of an employer’s wrongdoing to company outsiders, such as an enforcement agency of some sort.  But whistleblowing can also occur internally, meaning that the employee’s report is confined to other people within the employer, such as human resources or safety representatives.  We know that employees who blow the whistle externally sometimes have protection from an employer’s retaliatory conduct, but what about employees whose whistling never gets outside the employer?  Do internal whistleblowers ever have protection from retaliation?

The answer is yes, in limited circumstances.  Internal whistleblowing may be implicitly or sometimes even expressly protected by statutes or administrative rules that prohibit retaliation for complaining about or reporting unlawful behavior, even if the statute or administrative rule only explicitly covers complaints to third parties.  In essence, if a statute or administrative rule makes it illegal for an employer to retaliate against an employee who complains to an outside party, it’s very possible that an employee’s internal complaints will also be protected from retaliation, even if the statute or administrative rule does not specifically state so.

The theory behind anti-retaliation laws for internal whistleblowing, at least in those areas where an anti-retaliation statute or administrative rule exists, is that employees should feel free to internally address issues with their employers without fear of reprisals.  Plus, it would make little sense to afford employees anti-retaliatory protection for complaints outside the employer but lead them exposed to retaliation for making the same complaints internally.

To date, Iowa’s courts have only recognized internal whistleblowing rights in two circumstances – (1) internal reports of falsified training documents concerning employees who worked with dementia patients and (2) internal complaints of potential safety issues that implicated Iowa’s Occupational Safety and Health Act.  But there are many other possibilities given the vast array of anti-retaliation statutes and administrative rules on the books.

Internal whistleblower cases require legal analysis of statutes, regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

Monster Energy Drink Blamed In Deaths

Here’s an interesting report regarding complaints that some people have died after consuming Monster Energy Drink:

Five people may have died over the past three years after drinking Monster Energy, a popular energy drink that is high in caffeine, according to incident reports recently released by the Food and Drug Administration.

The reports, like similar filings with the F.D.A. in cases involving drugs or medical devices, do not prove a link between Monster Energy and the deaths or other health problems. The records were recently obtained under the Freedom of Information Act by the mother of a 14-year-old Maryland girl who died in December from a heart arrhythmia after drinking large cans of Monster Energy on two consecutive days.

Last week, Wendy Crossland, the mother of that teenager, filed a lawsuit against Monster Beverage, a publicly traded company in Corona, Calif., that used to be known as Hansen Natural. The lawsuit charges that Monster failed to warn about the risks of its energy drinks; a spokeswoman for the company said last week that its products were safe and not the cause of the teenager’s death.

That spokeswoman, Judy Lin Sfetcu, added that Monster was “unaware of any fatality anywhere that has been caused by its drinks.”

Monster Beverage’s stock ended down Monday more than 14 percent, sliding sharply after The New York Times reported about the F.D.A. filings.

In an interview, an F.D.A. spokeswoman, Shelly Burgess, said the agency had received reports of five deaths with possible links to the drink as well as a report of a nonfatal heart attack. Additional incident reports referred to other adverse events such as abdominal pain, vomiting, tremors and abnormal heart rate. The reports disclosed cover a period of 2004 to June of this year, but all the deaths occurred in 2009 or later.

The filings do not make clear whether the incidents involved other factors, like alcohol or drugs. However, the number of reports that the F.D.A. receives about any product it regulates usually understates by a large degree the actual number of problems.

The release of the filings about Monster Energy may increase Congressional calls for greater regulation of the energy products industry. Monster Energy is among scores of energy drinks like Red Bull and Rock Star, and energy “shots” like 5-hour Energy, that companies are aggressively marketing to teenagers and young people.

In a statement, Ms. Burgess, the F.D.A. spokeswoman, said that it was the responsibility of energy drink manufacturers to investigate accusations of death or injuries associated with them. She said that the agency was still looking into the cases but had yet to establish a causal link between the deaths and the drink.

But the release of the F.D.A. reports may also raise questions about how closely producers of energy products monitor their safety or whether the F.D.A. reviews those activities.

Late Monday, Ms. Sfetcu, the Monster Beverage spokesman, said that the company had not received copies of the F.D.A. incident filings about possible fatalities associated with its products apart from the one filed in connection with the December death of the Maryland teenager, Anais Fournier. She said she did not know whether the company actively monitored the F.D.A. database that collects reports about such incidents.

Monster Beverage makes a variety of energy drinks with names like Monster Rehab, Monster Assault and Monster Heavy Metal. Labels on the containers state that they are “not recommended” for some consumers, including children — a group that beverage producers define as those under 12 years — and people “sensitive” to caffeine.

Under current F.D.A. rules, companies are not required to disclose caffeine levels in their beverages and can choose to market them as drinks or as dietary supplements. Those regulatory categories have differing labeling and ingredient rules.

While healthy adults can safely consume large quantities of caffeine from sources like coffee, tea and energy drinks, the drug, which acts as a stimulant, can pose risks to those with underlying conditions like heart disorders.

The type of 24-ounce can of Monster Energy that the Maryland teenager, Anais Fournier, drank contains 240 milligrams of caffeine.

The lawsuit filed last week on behalf of the teenager referred to autopsy and medical examiner reports that said she had died of “cardiac arrhythmia due to caffeine toxicity” that had exacerbated an existing heart problem. The report also showed that the teenager had Ehlers-Danlos syndrome, which can affect the body’s connective tissue, including blood vessels. A lawyer for her family, Kevin Goldberg, said that the 14-year-old had been aware she had an underlying heart condition but added that her doctors had not told her to restrict her physical activities or her caffeine use.

In an April letter citing the teenager’s death, Senator Richard J. Durbin, Democrat of Illinois, urged the F.D.A. to enforce caffeine levels in energy drinks.

In August, F.D.A. officials responded by saying that there was insufficient evidence to take action on caffeine levels in energy drinks. However, the agency also noted then that it had not yet received medical reports related to the Maryland teenager’s death.

Source:  http://www.nytimes.com/2012/10/23/business/fda-receives-death-reports-citing-monster-energy-a-high-caffeine-drink.html?_r=0

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter that you would like to discuss.

Sharper Image USB Wall Chargers Recalled by Atomi Due to Fire and Burn Hazards

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Name of Product: Sharper Image USB wall chargers

Units: About 80,000

Importer: Atomi, of New York, N.Y.

Hazard: The chargers can overheat and smoke, posing fire and burn hazards to consumers.

Incidents/Injuries: Atomi has received 13 reports of the chargers overheating, smoking and acrid smells. No injuries have been reported.

Description: This recall involves Sharper Image USB wall chargers with model numbers �TSI202� and �TSI260.� The wall chargers are used to recharge electronic devices through a USB connection including MP3 players and other devices. The chargers are black plastic and measure about 2 � inches high by 1 � inches wide. �The Sharper Image� is printed on the top. The model number is printed on bottom of the charger,

Sold at: Burlington Coat Factory, Tuesday Morning and TJ Maxx stores and on various websites from October 2011 through September 2012 for between $8 and $13.

Manufactured in: China

Remedy: Consumers should immediately stop using the recalled wall chargers and contact Atomi for instructions on returning the chargers for a full refund.

Consumer Contact: Atomi; Phone (800) 790-1440, 9 a.m. to 5 p.m. ET Monday through Friday, email info@atominy.com

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml13/13007.html

The Sharper Image USB Wall Charger

Power Window Switch Concerns Prompt Massive Toyota Recall

Toyota Motor Corp. is recalling 7.43 million vehicles in the U.S., Japan,  Europe and elsewhere around the world for a faulty power-window switch.  The recall, announced Wednesday, affects more than a dozen models produced  from 2005 through 2010. The power-window switch on the driver’s side didn’t have  grease applied evenly during production, causing friction in the switch and  sometimes smoke, according to Toyota.

No crashes or injuries have been reported related to the problem. But more  than 200 problems were reported in U.S., and a fewer number of problems were  reported elsewhere, including 39 cases in Japan, Toyota spokesman Joichi  Tachikawa said.

Recalled in North America are the Yaris, Corolla, Matrix, Camry, RAV4,  Highlander, Tundra, Sequoia and Scion models xB and xD, spanning 2.47 million  vehicles.

Source:  Associated Press

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter that you would like to discuss.

Whistleblower Protection For Public Employees

Under Iowa law, state and local government employees have protection from retaliation for “whistleblowing” in certain circumstances.  Under Iowa Code 70A.28 and 70A.29, public employees cannot be fired or otherwise have their employment tangibly affected for making a report or disclosing information to a member or employee of the general assembly or from disclosing information or any other public official or law enforcement agency.

Note the limited group of people to whom a public employee may blow the whistle.  Public employees have no whisteblower protection under these statutes if they make a report or disclosure to someone besides other public employees.  So your classic case of whistleblowing, i.e., “going to the media,” is not covered under these statutes and public employees have no protection from retaliation for media disclosures, at least under these specific laws.

Iowa Code 70A.28 and 70A.29 also limit, in a very broad way, the scope of topics that are eligible for whistleblower protection.   The public employee’s report or disclosure to another public official must concern a violation of law or rule, mismanagement, a gross abuse of funds, an abuse of authority, or a substantial and specific danger to public health or safety.  Certainly most common whistleblower reports will fall within one of those categories, but it is possible that a report or disclosure to a public official will not receive whistleblower protection because the information disclosed is not important enough.

Additionally, public employees making a report or disclosure to another public employee must “reasonably believe” that the information indicates a violation of law or rule, mismanagement, a gross abuse of funds, an abuse of authority, or a substantial and specific danger to public health or safety.  In another words, the public employee better have some factual basis, and more than just suspicion or speculation, that something nefarious is occurring or the employee will not have whistleblower protection.

Public employees whose whistleblower right s are violated under these statutes can recover various types of relief as the court deems fit, including and especially lost wages, attorney fees, and lawsuit expenses.  In some instances, an injunction against the public employer may also be sought, such as to prevent the employer from firing the public employee.
Please feel free to contact me if you have an employment law question about public employees’ whistleblower rights.

Pink Angel Embroidered Girls’ Denim Shorts Recalled by Buy Buy Baby Due to Choking Hazard

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Name of Product: Pink Angel Embroidered Girls’ Denim Shorts

Units: About 1,170

Importer: Franshaw, Inc., of New York, N.Y.

Hazard: Decorative studs on the denim shorts’ pockets can detach and pose a choking hazard to young children.

Incidents/Injuries: Buy Buy Baby received one report of the decorative studs detaching from the shorts. No injuries have been reported.

Description: This recall involves “Pink Angel” branded embroidered denim shorts for girl infants and toddlers in sizes 12M to 4T. The shorts come with a bright pink lace belt and feature two embroidered butterflies on the left front panel with decorative studs attached to the front and rear pockets. Style numbers B91540 or B11540 can be found on the hangtag of the shorts.

Sold at: Buy Buy Baby retail locations from January 2012 to July 2012 for about $10 to $12.

Manufactured in: China

Remedy: Consumers should immediately stop using the recalled denim shorts and return them to any Buy Buy Baby store to receive a full refund.

Consumer Contact: Buy Buy Baby toll-free at (877) 328-9222 any time, or visit the firm’s website www.buybuybaby.com and go to the link Safety and Recalls at the bottom of the homepage for more information.

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml13/13004.html

Picture of Recalled Pink Angel Embroidered Girls' Denim Shorts