Legislative Alert

ENACTED LEGISLATION

U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA: Court allows case to proceed against car rental company, finding that it could potentially be liable for death of subcontractor's employee

Summary: A California federal judge has found that a car rental company could potentially be held liable for its subcontractor's failure to screen its employees for criminal histories, in a suit brought by relatives of a man murdered by his co-worker.

While California law usually does not hold companies responsible for the actions of their subcontractors, there are certain exceptions, one of which is if a company tells its subcontractor how to run its business, according to the court. The rental company could be found vicariously liable if it retained control over its subcontractor in a way that affirmatively contributed to the individual's death, either through its active participation or negligent omission. That could include things like the hiring, firing, training and scheduling of the subcontractor's employees.

"Having reviewed the record, the court finds that there are triable disputes as to whether [the company] retained control over [the subcontractor's] performance of its work, including safety-related issues," the court said. The case springs from a fight and fatal stabbing over a woman between two co-workers.

Impact(s): All employers

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OTHER UPDATES

E-VERIFY: USCIS reminds employers they cannot terminate employees because of a Tentative Nonconfirmation (TNC)

Summary: USCIS has posted a notice on its "What's New" page reminding employers that they may not terminate employees because of a Tentative Nonconfirmation (TNC). Specifically, the note states:

"You may not terminate or take any other adverse action against an employee because of the TNC until the Social Security Administration (SSA) and/or Department of Homeland Security (DHS) has reviewed the case and the TNC becomes a Final Nonconfirmation. Review the E-Verify User Manual and Job Aid for E-Verify Users for guidance on TNCs; and visit our Common E-Verify Questions page for Frequently Asked Questions."

Impact(s): All employers using E-Verify

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U.S. COURT OF APPEALS FOR THE FIFTH CIRCUIT: Texas urges appellate court to block the EEOC from enforcing or re-issuing 2012 criminal record guidance

Summary: Texas has once again attacked the EEOC's 2012 guidance on the use of criminal records in employment, telling the Fifth Circuit that the agency's "felon-hiring" rule does not line up with either federal anti-discrimination law or agency rulemaking procedures. Texas urged the Fifth Circuit to uphold a portion of U.S. District Judge Sam Cummings's February order awarding the state an injunction that blocks the EEOC and the U.S. DOJ from enforcing the EEOC's 2012 guidance interpreting Title VII of the Civil Rights Act against Texas unless it was reissued after allowing for public comment. The state also argued in its brief that the trial court's ruling did not go far enough and should have held that the EEOC has no power to issue the guidance at all; arguing that placing restrictions on employment of convicted felons doesn't violate Title VII.

Texas previously won partial summary judgment in February on enforcement after Judge Cummings found that the EEOC should have allowed public comments on the guidance, but the trial court refused to declare that the state's hiring practices regarding felons were appropriate or block the right-to-sue letters. "EEOC's felon-hiring rule displays a common tactic of today's federal agencies: couching directives with practical binding effect as mere 'guidance' or 'policy statements.' The goal is to illicitly enjoy the best of both worlds," Texas argues in its brief.

Impact(s): EEOC compliance – for general legal review

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