TAG

Background screening

FCRA-governed employment screening procedure.

EMP-02 · 01

Employee Background Checks Under the FCRA: Disclosure and Adverse Action

8 MIN · EMP

Most employment screening claims are about paperwork, not about the underlying decision. This brief sets out the FCRA sequence and the points where employers most often break it.

Section 604(b) of the FCRA requires a clear disclosure in a document consisting solely of that disclosure, plus the applicant's written authorization, before a report is obtained.
Adverse action is a two-step process: a pre-adverse-action notice with a copy of the report and the CFPB summary of rights, then a separate final notice.
No statute fixes the waiting period between the two notices; a reasonable interval, commonly five business days, is market practice rather than law.

Read the full brief →

EMP-04 · 02

Conducting a Workplace Investigation: Scope, Interviews, Records, and Fairness

8 MIN · EMP

A workplace investigation is judged later on how it was run, not on how it felt at the time. This brief sets out scope, interview discipline, confidentiality limits, and the file that survives review.

Employer harassment defenses turn on whether the response was prompt, thorough, and impartial — the standard EEOC guidance and courts both use.
Separate the fact-finder from the decision-maker. One person finds what happened; another decides discipline. The file reads far better afterward.
Blanket confidentiality instructions carry labor-law risk. Board precedent on investigation-confidentiality rules shifted in 2019 and again in 2023.

Read the full brief →

EMP-08 · 03

Arbitration Agreements at Work: Scope, Carve-Outs, and Enforceability

8 MIN · EMP

An employment arbitration program is enforceable in outline and contested at the edges. This brief separates what the federal statute secures from the carve-outs and defects that defeat individual agreements.

The Federal Arbitration Act makes written arbitration agreements enforceable and directs courts to compel arbitration of disputes within the agreement's scope.
A 2022 federal amendment lets a claimant elect to avoid arbitration of sexual assault and sexual harassment disputes, and a court decides that question.
Class and collective action waivers in employment agreements are generally enforceable under the federal statute as construed by the Supreme Court.

Read the full brief →

EMP-09 · 04

Employment References: Defamation Risk and Service-Letter Rules

8 MIN · EMP

The dates-and-title policy exists because of a risk most employers have never examined. This brief sets out the elements of a reference claim, the privileges that defeat it, and the states requiring more than silence.

Defamation requires a false statement of fact published to a third party with the required fault, so truthful statements and pure opinion are not actionable.
Many states provide a qualified privilege or a statutory immunity for good-faith job references, usually rebuttable by proof of malice or knowing falsity.
A minority of states have service-letter statutes requiring an employer to give a departing employee a written statement of the reason for separation.

Read the full brief →