Articles Posted in Employment & Labor

By Lane V. Erickson, Attorney

According to a Society for Human Resource Management (SHRM) survey more than eight out of ten human resource professionals reported that they regularly conduct reference checks for professional (89 percent), executive (85 percent), administrative (84 percent) and technical (81 percent) positions. Regular reference checks were less likely, but still happened, for skilled-labor, part-time, temporary and seasonal positions. Information routinely provided to reference checkers by surveyed employers included: (1) dates of employment for the job applicant; (2) eligibility for rehire; (3) salary history of the job applicant; and (4) employability of the job applicant.

Even with this high number of reference checks occurring we all know that references for a job applicant should be viewed through a filter of reality. Usually a job applicant will choose only those persons who will provide glowing praise as a reference. However, even in these situations, a check of references by an employer can help to provide an objective view of the job applicant if the right approach is taken.

By Lane V. Erickson

Several times a week I have clients who come to me and ask me to either review an employee handbook for them or to create an employee handbook for use with their employees in their business. 　The most universally, two specific questions that come up from my clients are discussed below.

WHAT IS AN EMPLOYEE HANDBOOK?

By Lane V. Erickson, Attorney

Many employers do not know or understand the laws that apply when it comes to hiring or choosing to not hire a prospective employee with a criminal record. Additionally, the amount of misinformation that exists and that people hear from well-meaning friends or unreliable sources on the internet only add to the confusion. Below are several myths that exist concerning whether or how employers can use criminal background checks in the employment process and actual facts to dispel those myths.

MYTH #1

By Lane V. Erickson, Attorney

Many of my clients who either already have an existing business or who are about to create one ask me questions about job applications for employees. Most people are familiar with job applications because most people have filled one out themselves in order to obtain a job from an employer. However, many people never consider what goes into a job application or what makes a job application good. If you are an employer, here are three things you should know about using a job application when hiring employees.

1. WHO SHOULD USE A JOB APPLICATION?

By Lane V. Erickson, Attorney

In order to determine how an employer can comply with the Fair Credit Reporting Act, in creating an employment relationship with an employee, let’s consider the following common scenario. 　You are a manager at an employing company that has several job vacancies to fill. This company is also thinking about promoting some current employees to new or higher positions. The company has winnowed down the stack of applications and resumes and wants to run background checks on employee applicants through a third party company who is in the business of compiling background information. This will include obtaining a credit report for the prospective or current employees.

The steps that you and this employer company can now take to ensure that full compliance with the Fair Credit Reporting Act are as follows:

By Lane V. Erickson, Attorney

It may be surprising to know that many people who are working a job really don’t know whether they are an employee or not. They may think that they are an independent contractor, but may not actually be one according to the law. 　In Moore v. Moore, the Idaho Supreme Court provided some specific guidance on whether a person is in fact an independent contractor or not. Here are the 4 factors the Courts used in its decision.

The first factor that the Court examined was whether there was direct evidence of the employer’s right to control the time, manner, and method of the work. In analyzing this factor, the Commission found that Claimant generally controlled his own work. The Commission analyzed the period of time from the late 1990’s until 2008, and found that at all times before and after the accident, Claimant was an independent contractor who controlled his own work. Moore v. Moore, 152 Idaho 245, 249, 269 P.3d 802, 2011 Ida. LEXIS 12 (Idaho 2011). Shriner v. Rausch, 141 Idaho 228, 108 P.3d 375 (2005), does not stand for the proposition that the Commission cannot consider the course of dealings between the parties when conducting its analysis. Importantly, the Court in Shriner never indicated that the course of dealing could not be considered, but only that the course of dealing did not change the result in that case. If anything, the Court’s statement was an explicit acknowledgement that the course of dealing was properly examined, but that such dealings either supported, or did not contradict, the Court’s ultimate conclusion. Moore v. Moore, 152 Idaho 245, 250, 269 P.3d 802, 2011 Ida. LEXIS 12 (Idaho 2011).

By Lane V. Erickson, Attorney

Credit checks related to hiring and other employment matters are generally referred to as employee credit checks or employment credit checks. Idaho does not currently have a “credit check law” that restrict or prohibit an employer from conducting a credit check on its prospective or current employees. As a result, employers have the right to conduct an employment credit check to make  hiring or other employment related decisions. A potential or current employer is free to check a credit report as part of an employment background check.

The main reasons employers conduct credit checks on job candidates are to help prevent theft and embezzlement, and to reduce potential legal liability for negligent hiring. Credit checks are often used by employers. In fact, a 2012 survey by the Society of Human Resource Management showed that 47 percent of the employers surveyed conduct credit checks on job candidates. Of those employers, 34 percent conduct credit checks only on certain job candidates and 13 percent do so on all job candidates.

By Lane V. Erickson, Attorney

Regardless of whether your workforce in Idaho is 20 or 2,000, any organization that has employees will benefit from having well written, accurate job descriptions for its employees. Drafting effective and accurate job descriptions in an Idaho Employment Agreement eliminates unnecessary confusion. It also helps ensure that all duties of the job are assigned efficiently. Most importantly, accurate job descriptions may help protect an Idaho Employer when things go bad.

Why Does Having a Written, Accurate Job Description Matter?

By Joseph G. Ballstaedt

Yes, an employer in Idaho can pay employee with non-monetary compensation, and most do to some extent. Non-monetary compensation is any work benefit that isn’t paid in cash, with a check, or by deposit into the employee’s bank account. See Paolini v. Albertson’s, Inc., 143 Idaho 547, 550, 149 P.3d 822, 825 (2006). Sometimes these benefits are called “incidental benefits.” Examples include paid time off, retirement matching, entertainment, daycare services, gym membership discounts, tuition assistance, free magazine subscriptions, stock options, room and board, and health care benefits. These benefits allow employers to provide their employees more value without directly putting more money in their pockets, and sometimes the employer is able to directly deduct the value of these benefits from the amount the employer would otherwise pay the employee.

There are limits, however, on an employer’s use of non-monetary compensation. Under Idaho law, at least some compensation must be paid in cash. See Idaho Code § 45-608 (“Employers shall pay all wages due to their employees .　.　. in lawful money of the United States or with checks .　.　.　.” (emphasis added)). For example, an employer cannot pay an employee purely in tuition assistance, even if the value of this benefit is equal to or greater than minimum wage.

By Joseph G. Ballstaedt

Under federal law, when an employer intentionally discriminates against an employee based on the person’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, or disability, the employer can be liable for punitive damages. See 42 U.S.C. § 1981a(a). The purpose of punitive damages is to punish the employer and deter future discrimination. Punitive damages are separate from monetary relief based on lost wages and also distinct from compensatory damages, which address emotional distress, pain and suffering, harm to reputation, etc.

An employee can obtain punitive damages if he or she proves the employer discriminated “with malice or with reckless indifference” to the employee’s federal employment rights. 42 U.S.C. § 1981a(b)(1). Under this standard, it is not enough that the employer knows he is discriminating; rather, the employer must know that he may be violating the employee’s legal rights. See Kolstad v. ADA, 527 U.S. 526, 535 (1999). Put simply, this standard asks whether the employer knew certain conduct was against the law but did it anyway.