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background check

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xylene

Senior Member
The issue is in dispute in CA and NY with sopecific claims on UI and Min Wage.

Federally it is in court, but the limo branch was ruled to be independent contractors.

In AZ UBER drivers are independent contractors.
 


quincy

Senior Member
Did a court rule on Arizona's Uber driver status?

Florida's 3rd District Court of Appeals and the US District Court for the Eastern District of Pennsylvania ruled Uber is not an employer but in New York and California the decisions have favored the drivers in cases seeking employee benefits.

I have links to some state cases but none for Arizona.
 
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FlyingRon

Senior Member
It really doesn't make much difference for the subject of this discussion if he's an employee or contractor. However, other than indicating they used a background check company and who it was, that's all Uber needs to do when they deny you.
 

PayrollHRGuy

Senior Member

quincy

Senior Member
Actually as I understand it under the FCRA the employer must provide first a letter saying that negative action is going to be taken based on the background check and along with that letter a copy of the background check and a letter explaining the rights under FCRA must both be included. THEN a second letter actually taking the action must be sent after 10 days have passed.

https://www.ftc.gov/tips-advice/business-center/guidance/using-consumer-reports-what-employers-need-know
If the employment denial is based on a background check from a background check company, that is what is required of the employer.

I suspect here that the background check company's information was disclosed by Uber or, as could be the case, no background check company was used and an investigation was done by Uber themselves (through an internet search). In that case, there is no need to identify any other company.

Often a search online tells an employer all they need to know about an applicant.
 

PayrollHRGuy

Senior Member
As I was replying to FlyingRon's post I was only intending to speak to a reporting service provided background check and was pointing out that the statement "However, other than indicating they used a background check company and who it was, that's all Uber needs to do when they deny you." was not correct.
 

FlyingRon

Senior Member
Actually as I understand it under the FCRA the employer must provide first a letter saying that negative action is going to be taken based on the background check and along with that letter a copy of the background check and a letter explaining the rights under FCRA must both be included. THEN a second letter actually taking the action must be sent after 10 days have passed.

https://www.ftc.gov/tips-advice/business-center/guidance/using-consumer-reports-what-employers-need-know
I simplified it, but you're wrong. A "copy of the background check" is not required. Yes, there are boilerplate disclosures as well. The only non-boilerplate was the identity of the background check company.
 

PayrollHRGuy

Senior Member
FTC says otherwise in the link I posted.

Before You Take an Adverse Action
Before you reject a job application, reassign or terminate an employee, deny a promotion, or take any other adverse employment action based on information in a consumer report, you must give the applicant or employee:

  • a notice that includes a copy of the consumer report you relied on to make your decision; and
 

xylene

Senior Member
Actually as I understand it under the FCRA the employer must provide first a letter saying that negative action is going to be taken based on the background check and along with that letter a copy of the background check and a letter explaining the rights under FCRA must both be included. THEN a second letter actually taking the action must be sent after 10 days have passed.

https://www.ftc.gov/tips-advice/business-center/guidance/using-consumer-reports-what-employers-need-know
Does this apply to independent contractors?
 

PayrollHRGuy

Senior Member
Does this apply to independent contractors?
Good question, but I don't choose to be the test case to find out. If I run a BG check and a negative decsion is made based on it I choose to spend the less than $1.00 to send the two required letters.
 

quincy

Senior Member
Here is a link to a 2016 New York Times article about the Uber settlements over background checks:
https://www.google.com/amp/s/www.nytimes.com/2016/04/08/technology/uber-settles-suit-over-driver-background-checks.amp.html

And here, just because, is California's May, 2018, Supreme Court opinion in a case that better defines in California who is an employee and who is an independent contractor: Dynamex Operations West, Inc. v. The Superior Court of Los Angeles County; Charles Lee et al http://www.courts.ca.gov/opinions/documents/S222732.PDF

Several states (like Illinois and New Jersey) use what is called an ABC test in determining whether a worker is an employee or an independent contractor. A. Does the contractor provide service free from company control?; B. Is service provided outside company's core business (e.g., a janitor at a law firm)?; C. Is the contractor an independent professional engaged in providing service to companies other than the one in question?

Uber drivers have been determined to be independent contractors in Michigan, Florida, Pennsylvania, and West Virginia. I think it is still a question in New York and California and Arizona (but I could be wrong).
 

FlyingRon

Senior Member
I can almost guarantee that Uber made the disclosures required. You sign up online and you agree to a bunch of things before you authorize the check.
 

PayrollHRGuy

Senior Member
I can almost guarantee that Uber made the disclosures required. You sign up online and you agree to a bunch of things before you authorize the check.
I wouldn't be so sure, especially with Uber. Do a Google search there are a number of class action suits against major employer for running afoul FCRA guidelines. And all that stuff you sign off on before they run and use the background check doesn't release them from the things they have to do after they negative action.

I take negative action about 20-30 times a month. You would be amazed at the number of people that had never received a copy of the background check before that had had negative action taken my fairly large employers.
 

quincy

Senior Member
I think Uber probably notified snowman two years ago when they emailed him a problem with his background check.

Because of all of the previous and current lawsuits against Uber, I would think Uber would be extra vigilant about following the law.
 
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