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Legal Clinic

Ceremonial Obligations

This month's Jewish holidays, as well as the 9/11 observances, bring forth questions of legal obligations regarding requests for time off and practices in background investigations.

Monday, September 10, 2007
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This month, we address two topics pertinent to this time of year. First, as the Jewish high holidays begin later this week, it seems appropriate to begin this column by addressing the perennial question of how to treat employees' requests for time off for religious observance. 

Second, with sixth anniversary of 9/11 tomorrow, we consider the issue of background checks. Background checks have become standard practice in many industries since those terrorist attacks, but in conducting these investigations, employers should be mindful of their legal obligations under the Fair Credit Reporting Act.

Question: Is it legal for employers to pay religious employees for non-government holidays, but not pay the non-religious employees for these holidays? For example some employees who celebrate Rosh Hashanah are being paid for this holiday but those who do not celebrate it are not getting paid.

Answer: Title VII of the Civil Rights Act of 1964, and many state laws, require employers to make reasonable accommodations for an employee's religious beliefs and practices. Granting an employee time off, with or without pay, for religious observance is one form of reasonable accommodation. It may, therefore, be entirely lawful for an employer to grant employees a paid day off to observe the Jewish holiday of Rosh Hashanah.

However, an employer might run afoul of the anti-discrimination laws were it only to offer this accommodation to its Jewish employees. To the extent that a similarly situated employee of another religious faith also needed a day off from work to observe a religious holiday, the employer would be expected to extend the same accommodation of a paid day off. 

To avoid becoming embroiled in the details of any employee's religious observance, and to address the perception of unfairness from non-observers that appears to have prompted the initial question, some employers offer employees one or more "floating holidays" annually, to be used for religious observance or for secular holidays that are not being observed by the employer.

It is also important to note that while granting time off for observance of a religious holiday is permissible as a reasonable accommodation, this type of accommodation is not required in all situations. For example, such an accommodation would not be required if, by virtue of the nature of the employee's position, the size of the employer or other factors, it would impose an undue hardship on the employer to grant an employee the day off. 

Question: We are in professional services business. When the client requires background checks on our employees that are going to be performing services for the client, what information can employer disclose? Should there be a form that gathers information? Should the employee be notified?

Answer: Employers conducting background checks on employees, for their own purposes or at the behest of a client, must comply with the Fair Credit Reporting Act. FCRA applies whenever a background check is conducted for employment purposes through the services of a third party. 

When FCRA, and any applicable state laws, are satisfied, an employer may freely disclose to the client any information relevant to staffing the employee for that client's matter. 

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Most important under FCRA, prior to conducting the background check the employer must obtain the employee's consent.

The employer must provide the employee with a written disclosure that generally describes the purpose and scope of the background check, and must obtain from the employee written authorization, acknowledging the employee's consent to the background check. 

Employers may secure a standing authorization so that, for example, the employer would not need to provide a new disclosure and secure a new authorization each time a consultant was being considered for assignment with a different client.

The content of the disclosure notice and authorization depends on whether the employer seeks to obtain a "consumer report" or, more likely in this type of situation, an "investigative consumer report" in which "information on a consumer's character, general reputation, personal characteristics or mode of living is obtained through personal interviews with neighbors, friends, or associates of the consumer reported on or with whom he is acquainted or who may have knowledge concerning any such items of information." 

Additional disclosure language is required if a drug test is being conducted or other medical information is sought. 

Further, some states also require check-off boxes or additional disclaimers/disclosure language beyond that required under FCRA. It is, therefore, advisable to check with local counsel before conducting a background check on an employee to obtain legally compliant FCRA materials.

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