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Ninth Circuit: FCRA Disclosure Notice to Employees Must Stand Alone

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January 29, 2019

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In Gilberg v. Cal. Check Cashing Stores, the Ninth Circuit stated that the Fair Credit Reporting Act (FCRA) prohibits including “extraneous” information with the required notice of rights, including legal rights individuals have under state fair credit reporting laws. The FCRA applies to employers who obtain background or credit reports on applicants and employees in the employment context. Specifically, the FCRA requires employers to provide the individual with a disclosure of their right to obtain a copy of the report, and obtain written authorization before obtaining the reports. Although the authorization may be on the same page as the disclosure, no other information may be present. Additionally, because the California Investigative Consumer Reporting Agencies Act (ICRAA) mirrors the FCRA, the same segregation requirements apply to California-required disclosures.

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Ninth Circuit: Requiring Applicant to Pay for Pre-Hire Medical Testing Violated ADA

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Employers with 15 or more AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, and Northern Mariana Islands Employees

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August 29, 2018

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The Ninth Circuit Court of Appeal recently stated that an employer violated the Americans with Disabilities Act (ADA) by requiring a job applicant to obtain, and pay for, additional medical testing as part of a condition of employment.

Ninth Circuit: The Federal Railway Labor Act Does Not Necessarily Preempt State Leave Laws

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All Employers with AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, and Northern Mariana Islands Employees

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August 1, 2018

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In Alaska Airlines v. Shurke, the Ninth Circuit stated that because an employee’s state law claim did not arise entirely from or require interpretation of the employee’s collective bargaining agreement (CBA), the employee’s Washington Family Care Act (WFCA) claim was not preempted.

Ninth Circuit: Fair Credit Reporting Act Pre-Adverse Action Notice Is a Procedural Requirement and Not an Actionable Right

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Employers with AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, and Northern Mariana Islands Employees

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July 13, 2018

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In Dutta v. State Farm, the Ninth Circuit Court of Appeal stated that an employee did not have standing to sue a prospective employer for failing to comply with the pre-adverse action notice requirements under the Fair Credit Reporting Act (FCRA). The FCRA requires employers to give applicants notice before they take any adverse employment action based on the results of a consumer report (e.g., credit report). This requirement is meant to give the applicant an opportunity to contest or correct information in the credit report. After providing such pre-adverse action notice and certain timing requirements are met, an employer may then take the adverse action if it still intends to do so.

Ninth Circuit: Wage Rates Used for Overtime Hours Cannot Be Lower Than Those Used for Non-Overtime Hours

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All Employers with AK, AZ, CA, GU, HI, ID, MT, NV, OR and WA Employees

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March 21, 2017

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In Brunozzi v. Cable Communications, Inc., the Ninth Circuit stated that wage rates cannot be decreased in weeks when overtime is worked, as compared to weeks when no overtime is worked. There, two cable technicians were paid a piece rate per cable system installed, plus a contractually-based production bonus each pay period as part of their regular wages.  When the employer calculated overtime, it reduced the production bonus by the amount of overtime paid for piece rate work, which meant that employees received lower wage rates than when they did not work overtime.

Ninth Circuit: Car Dealership Service Advisors Not Exempt from FLSA

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All Employers with AK, AZ, CA, GU, HI,
ID, MT, NV, OR, WA Employees

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January 9, 2017

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We previously reported on Navarro v. Encino Motorcars, LLC, wherein a group of service advisors at an auto dealership alleged that they did not receive owed overtime compensation. At that time, the Ninth Circuit decided to defer to the U.S. Department of Labor’s interpretation of the Fair Labor Standards Act (“FLSA”); the U.S. Supreme Court reversed this decision and remanded the case to the Ninth Circuit to determine how the FLSA statutes apply to auto dealership service advisors.

Ninth Circuit: Disclosures for Background Checks Cannot Contain a Liability Waiver

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All Employers with AK, AZ, CA, GU, HI,
ID, MT, NV, OR, WA Employees

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January 20, 2017

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On January 20, 2017, in Syed v. M-I, LLC, the Ninth Circuit Court of Appeals stated that the disclosure required by the Fair Credit Reporting Act (“FRCA”) cannot also contain a liability waiver for conducting the background check in the same document.  Rather, only the disclosure notice and background authorization can be contained within the same document.  Having other language in the disclosure notice violates background check rules under the FRCA.

Ninth Circuit: Mandatory Class Action Waivers in Arbitration Agreements Are “Illegal”

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 Employers with Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon and Washington Employees

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August 22, 2016

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The Ninth Circuit has stated that use of mandatory class action waivers in arbitration agreements are prohibited, becoming the second federal circuit court to strike down such agreements.  In short, employers in the states covered by the Ninth Circuit cannot require employees to sign an agreement giving up their right to class action/collective claims as a condition of employment.